wmvx  \f*\-     *  v 


SYSTEMATIC  SERIES  EDITED   BY  THE  FACULTY  OF 
POLITICAL  SCIENCE  IN  COLUMBIA   UNIVERSITY 


POLITICAL  SCIENCE 


AND 


COMPARATIVE  CONSTITUTIONAL  LAW 

Volume  I 
SOVEREIGNTY  AND  LIBERTY 

BY 

JOHN  W.  BURGESS,  Ph.D.,  LL.D.,  J.U.D. 

Professor  of  Political  Science  and  Comparative  Constitutional  Law 

Dean  of  the  Faculties  of  Political  Science,  Philosophy, 

Pure  Science,  and  Fine  Arts  in  Columbia  University 


>*Jo° 


APR  2  4 'is 


GINN  AND  COMPANY 

BOSTON  •  NEW   YORK  •  CHICAGO  •  LONDON 
1913 


Entered  at  Stationers'  Hall. 


Copyright,  1890, 
By  JOHN  W.   BURGESS. 


All  Rights  Reserved. 
413-9 


Vfbc   S3  tftengum    egress 

GINN  AND  COMPANY  •  PRO- 
PRIETORS ■  BOSTON  •  U.S.A. 


2/3 

Co  Jd,ZL> 


TO 

the  memory  of  my  former  friend  and  teacher, 

Prot  ©r.  Soljann  ffiustab  ©rogsen, 

these  volumes,  as  the  first-fruits  of  a  work  begun  many  yean 

ago  under  his  guidance,  are  reverently  and 

affectionately  inscribed. 


V-  / 
PREFACE. 


When,  a  score  of  years  ago,  I  first  read  Hegel's  Philosopkie 
der  Geschichte,  I  resolved  that,  should  I  ever  write  a  book, 
I  would  dispense  with  an  introduction.     I  shall  now  keep, 
substantially,  that  self-made  promise ;  and  yet  I  feel  myself 
(^      necessitated  to  preface  my  work  with  a  few  words,  in  order 
that  I  may  briefly  explain  to  the  public  why  I  presume  to 
^      ask  its  indulgent  attention  to  another  treatise  upon  an  old 
N       subject,  and  in  order  that  I  may  make  due  acknowledgment 
of  my  gratitude  to  two  friends,  who  have  rendered  me  inval- 
uable service  in  the  preparation  of  these  volumes. 

I  believe  it  was   Goethe  who  said  that  men  should  live 


t/J 


before  they  write.  It  is,  indeed,  a  serious  thing  to  ask  the 
rj  world  to  read  a  book.  It  should  never  be  done,  unless  the 
book  answers  a  purpose  not  fulfilled,  or  not  so  well  fulfilled, 
by  some  book  already  existing.  The  publication  of  a  new 
book  in  the  domain  of  Political  Science  is  never  justifiable 
unless  it  contains  new  facts  ;  or  a  more  rational  interpreta- 
tion, or  a  more  scientific  arrangement,  of  facts  already  known ; 
or  a  new  theory. 

It  is  this  consideration  which  has  caused  me  to  hesitate 
long  before  offering  this  work  to  the  public,  —  so  long  that  I 
have  sometimes  feared  it  would  share  the  fate  of  Mr.  Casau- 
bon's  Key.  I  cannot  claim  that  it  contains  any  facts  before 
unknown.  I  believe  that  I  advance,  in  some  cases,  a  different 
interpretation  of  facts,  and  a  different  conclusion  from  facts, 
than  have  been,  heretofore,  presented.     Whether  that  inter- 


vi  Preface. 

pretation  be  more  rational  than  what  has  gone  before,  or  that 
conclusion  more  logical,  are  questions  whose  decision  must 
rest  with  my  readers.  If,  however,  my  book  has  any  pecu- 
liarity, it  is  its  method.  It  is  a  comparative  study.  It  is 
an  attempt  to  apply  the  method,  which  has  been  found  so 
productive  in  the  domain  of  Natural  Science,  to  Political 
Science  and  Jurisprudence.  I  do  not  claim  to  be  the  first 
author  who  has  made  this  attempt.  It  is  the  method  chiefly 
followed  by  the  German  publicists.  In  the  French,  English, 
and  American  literatures,  it  is,  on  the  other  hand,  relatively 
new.  Boutmy,  Bryce,  Dicey,  Moses,  and  Wilson  have,  in- 
deed, already  broken  the  ground,  but  the  field  is  capable  of  a 
much  wider,  and  also  a  more  minute,  cultivation. 

It  is  here  that  I  have  chosen  to  lay  out  my  work,  and  I 
trust  it  will  be  found  that  some  slight  advance  has  been  made 
in  the  development  of  the  comparative  method  in  the  treat- 
ment of  this  domain  of  knowledge. 

My  most  grateful  acknowledgment  for  aid  in  the  prepara- 
tion of  this  work  is  due  to  my  friend  and  colleague,  Prof.  Dr. 
Munroe  Smith,  who,  in  the  midst  of  other  arduous  duties,  has 
read  the  proof  sheets  of  the  entire  text,  and  has  made  many 
most  invaluable  criticisms  and  suggestions  upon  it,  which, 
almost  without  exception,  have  been  accepted  and  incorpo- 
rated in  the  work.  My  most  sincere  thanks  are  also  due  to 
my  friend  and  former  pupil,  Dr.  Robert  Weil,  who  has,  with 
great  care  and  fidelity,  verified  all  the  references,  and  pre- 
pared the  table  of  contents,  the  table  of  cases,  and  the  index. 
His  kindly  aid  has  greatly  lightened  my  labors,  and  his  exact- 
ness has  preserved  me  against  many  an  error. 


JOHN   W.   BURGESS. 


Winooski  Highlands,  Montpelier,  Vt., 
August,  1890. 


Vol.  I. 


TABLE    OF   CONTENTS. 

Part  I.     Political  Science. 

BOOK   I.     THE   NATION. 

CHAPTER   I.    THE   IDEA   OF  THE  NATION. 

PAGE 

The  term  "  nation  "  and  its  abstract  definition       .         .         .         .         .         .  I 

Explanation  of  the  definition  :  geographic  unity  and  ethnic  unity  defined  .  2 
Where  the  geographic  and  ethnic  unities  coincide  the  nation  becomes  a 

state       .............  3 

Not   all  nations  are  capable  of  political  organization.     A  nation  may  be 

divided  into  several  states 4 

CHAPTER   II.    THE    PRESENT   GEOGRAPHICAL   DISTRIBUTION  OF 
NATIONS  AND   NATIONALITIES. 


Definition  of  the  term  "  nation "  and  "  nationality " :  only  Europe  and 
North  America  will  be  treated  herein.  I.  The  geographic  unities  of 
Europe  ........... 

I.  The  Iberian  Peninsula;    2.  The  British  Isles;    3.  The  Gallic  Lands 

4.  The  Italian  Peninsula        ......... 

5.  The  Balkan  Peninsula;    6.  The  Scandinavian  Peninsula. 

7.  The  Central  District;    8.  The  Danubian  Territories 
9.  The  Eastern  Division        ......... 

The  Geographic  Unities  of  North  America.     1.  The  Mexican  Tableland; 

2.  The  Atlantic  Slope;  3.  The  South  Pacific  Slope;  4.  The  North 
Pacific  Slope;  5.  The  Mississippi  River  Basin;  6.  The  Northern 
Plateau  ............ 

II.  The  Ethnographic  Unities  of  Europe.    I.  The  Ethnography  of  the  Iberian 

Peninsula;    2.  Of  the  British  Isles  .... 

3.  Of  the  Gallic  Lands  ....... 

4.  Of  the  Italian  Peninsula;    5.  Of  the  Balkan  Peninsula     . 

6.  Of  the  Scandinavian  Peninsula;    7.   Of  the  Central  District 

8.  Of  the  Danubian  Territories;    9.  Of  the  Eastern  Division 
The  Ethnographic  unities  of  the  second,  third  and  fifth  geographic  unities 

of  North  America  (the  United  States  of  America)  .         .         .         18-21 


viii  Tabic  of  Contents. 

PAGE 

III.  The  correspondence  of  the  political  divisions  with  the  physical  and 
ethnographic  divisions  of  Europe  and  North  America. 

1.  The  Iberian  Peninsula:   Spain  and  Portugal     .         .         .         .         .         .21 

2.  The  United  Kingdom  of  Great  Britain  and  Ireland;   3.  France,  Belgium, 

Holland         .....         .......  22 

4.  Italy;    5.  The  Balkan  Peninsula :  Greece  and  Turkey       ....  23 

6.  The  Scandinavian  Peninsula :   Sweden  and  Norway  ....  24 

7.  The    Central    District :     The    German    Empire,    Denmark,    Luxemburg, 

Switzerland,  Holland,  Austria,  the  eastern  part  of  Russia        ...       25 

8.  The  Austro-Hungarian  Monarchy,  Bosnia-Herzegovina,  Servia         .         .       26 

9.  Russia  in  Europe,  Rumania,  Bulgaria,  East  Prussia  ....       27 
The  United  States  of  America       ........         28,  29 

CHAPTER    III.     NATIONAL   POLITICAL   CHARACTER. 

Principles  of  political  psychology.  The  nations  of  modern  Europe  and  the 
United  States  of  America  are  sprung  from  the  Greek,  Latin,  Celtic, 
Teutonic  and  Slavonic  races  .........       30 

1.  Political  psychology  of  the  Greek  and  Slav:    community  sovereignty; 

they  must  be  organized  politically  by  foreign  peoples     .         .         .  3I_33 

2.  Of  the   Celt:     Clanship  their    highest  political  organization;     they  also 

must  be  organized  from  without    .......  23>  34 

3.  Of  the    Latin:     the   Universal   Empire  their  great  political  institution; 

characteristics  of  the  Universal  Empire 35,  36 

4.  Of  the  Teuton 37 

The  National  State  is  the  production  of  Teutonic  political  genius  .  .  3S 
Characteristics  of  the  National  State 38,  39 

CHAPTER  IV.  CONCLUSIONS  OF  PRACTICAL  POLITICS  FROM 
THE  FOREGOING  CONSIDERATIONS  IN  REGARD  TO  PHYSICAL, 
ETHNICAL,  AND  POLITICAL  GEOGRAPHY,  AND  NATIONAL 
CHARACTERISTICS. 

1.  National  unity  is  the  determining  force  in  the  development  of  the  modern 

constitutional  states        ..........  40 

The  union  of  several  states  occupying  one  geographic  unity     ...  40 

The  disintegration  of  a  state  occupying  several  geographic  unities  .  .  41 
The  development  of  ethnic  homogeneity  in  a  state  composed  of  several 

nationalities  .  ..........  42 

The  restriction  of  foreign  immigration      ....         ...  43 

2.  Teutonic  nations  are  particularly  endowed  with  the  capacity  for  estab- 

lishing national  states;    and  hence  are  entrusted  with  the  mission  of 
conducting  the  political  civilization  of  the  modern  world         .         .         44,  45 
They  must  have  a  colonial  policy      .......         45,  46 

3.  Interference  in  the  affairs   of  peoples  that   manifest  incapacity  to  solve 

the  problem  of  political  civilization  with  completeness,  is  justifiable        .       47 


Tabic  of  Contents.  ix 


BOOK   II.     THE   STATE. 

CHAPTER   I.     THE  IDEA  AND  THE   CONCEPTION  OF  THE 

STATE. 

PAGE 

Distinction  between  the  idea  of  the  state  and  the  concept  of  the  state  .         49,  50 
Definition  of  the  term  "state  "  from  the  standpoint  of  the  concept         .         .       51 

I.  Principles  according  to  which  the  portions  of  mankind  forming  states  are 

determined    ............  51 

II.  Peculiar  characteristics  of  the  state         .         .         .         .         .         .  51 

1.  All-comprehensiveness;    2.  Exclusiveness;    3.  Permanence;    4.  Sov- 
ereignty  ............  52 

Characteristics  of  sovereignty  :    (a)  It  is  unlimited  ...  53,  54 

(6)  It  is  the  source  and  support  of  individual  liberty        •         •  •         •       55 

Exemplification  of  this  fact  in  history 56 

The  principle  of  the  sovereignty  of  the  state  is  opposed  because  publicists 

do  not  sufficiently  distinguish  state  from  government     .  .  .         -57 

CHAPTER   II.     THE   ORIGIN   OF  THE   STATE. 

The  theological,  social  and  historical  theories  of  the  origin  of  the  state :  the 

historical  the  correct  theory  .........  59 

The  earliest  form  of  the   state  is  the  theocracy :    contribution  of  Asia  to 

political  civilization         .         .  ........  60 

Political  organization  of  the  world  by  religion 61 

The  social  compact  is  only  a  force  in  the  later  development  of  the  form  of 

the  state 62 

The  historical  theory  takes  undeveloped  human  nature  for  its  basis       .         .  63 

History  of  the  origin  of  the  state  :   the  theocratic  stage         ....  64 

Followed  by  despotism  ..........  65 

The  transition  stage;    the  absolute  monarchy         ......  66 

The  constitutional   state.      Only  Latin  and  Teutonic  peoples  have  realized 

the  state  in  its  approximately  pure  form 67 

CHAPTER   III.     THE   FORMS   OF   STATE. 

Confusion  in  the  minds  of  publicists  between  state  and  government       .         .       68 

In  the  transition  from  one  form  of  state  to  another,  the  point  of  sovereignty 

moves  from  one  body  to  another  :   the  example  of  English  history  .       69 

The  conditions  in  America  more  favorable;  American  publicists  not  suffi- 
ciently independent        ..........       70 

The   organization   of   the    state    outside   of  the   government  is  everywhere 

incomplete     ............       7"1 

The  forms  of  state  according  to  Aristotle :  monarchy,  aristocracy,  democ- 
racy      .............       71 

Aristotle's  proposition  is  true  as  to  the  forms  of  state  .  ....       72 


Table  of  Contents. 


PAGE 


Von  Mohl's  criticism  of  the  Aristotelian  proposition 72 


Schleimacher's  vindication  thereof 
Von  Mohl's  classification 


73 
73 


Criticism  of  von  Mohl  ■•••-......       74 

Bluntschli's  classification :  the  Idiokratie      .......       75 

The  mixed  form  of  state 75 

Reason  for  its   rejection         ..........       76 

Bluntschli  confounds  state  and  government :   the  Compound  State  (Zusam- 

mengesetzte  Statsform)  .........       77 

Criticism  of  the  Compound  State  and  its  subdivisions  :   states  having  colonies 

or  vassal  provinces;    states  in  personal  union         .....       78 

The  confederacy;  the  federal  state,  so-called        .         .         .         .         .         79,80 

The  Aristotelian  proposition  is  correct  and  exhaustive  .....       81 

Modern  states  are  democracies      .........       81 

Social  conditions  which  precede  and  make  possible  the  democratic  state        81,  82 

CHAPTER   IV.     THE   ENDS   OF  THE   STATE. 

Proposition  of  von  Holtzendorff  in  Principien  der  Politik :  the  three  ends 

of  the  state    ...         .........  83 

Criticism  of  von  Holtzendorff 's  proposition   .......  84 

The  ends  of  the  state  are,  1.  Primary;    2.  Secondary;    3.  Ultimate  .         .  85 

The  Ultimate  End :   Hegel's  Sittlichkeit :  the  World  State    ....  85 

The  National  State  the  necessary  predecessor  of  the  World  State;   the  per- 
fecting of  its  nationality  the  secondary  end  of  the  state         ...  86 
Government  and  Liberty  the  primary  ends  of  the  state         ....  86 

Government  must  precede  liberty         ........  86 

But  the  state  must  from  time  to  time  re-adjust  the  relation  of  government  to 

liberty 87 

The  doctrine  of  natural  rights;    liberty  does  not  exist  outside  of  state  organ- 
ization  .............  88 

Recapitulation  of  the  ends  of  the  state  in  historical  order :  government,  lib- 
erty, the  development  of  national  genius,  world  civilization    ...  89 

BOOK  III.  THE  FORMATION  OF  THE  CONSTITUTIONS 
OF  GREAT  BRITAIN,  THE  UNITED  STATES,  GER- 
MANY  AND    FRANCE. 

Reasons  for  treating  this  topic  as  a  subject  of  Political  Science  instead  of  as 

one  of  Public  Law;   why  the  constitutions  of  these  states  are  chosen      .       90 

CHAPTER  I.     THE   FORMATION   OF  THE   CONSTITUTION   OF 
GREAT   BRITAIN. 

Wherein  the  constitution  of  Great  Britain  differs  from  that  of  other  states     .       91 
It  is  the  product  of  the  Revolutionary  change  of  the  year  1832       .         .        91,  92 


Table  of  Contents.  xi 

PAGE 

The  three  great  revolutions  in  the  English  political  system:   121 5,  Magna 

Charta 92,  93 

1485,  the  foundation  of  the  Absolute  Monarchy 93 

The  Stuarts  and  the  Guelphs 94 

1832,  the  Reform  Bill 95 

Its  revolutionary  nature  and  consequences    .         .  .         ...       96 

The  House  of  Commons  is  the  organization  of  the  state         .         .  -97 

CHAPTER   II.      HISTORY   OF  THE   FORMATION   OF   THE   CONSTI- 
TUTION  OF  THE   UNITED   STATES. 

The  constitution  of  the  United  States  the  product  of  revolution;  three  periods 

in  American  history  prior  to  1787;   a.  The  Colonial  Period   ...  98 

The  elements  of  national  life  existed  in  the  Colonial  Period  ....  99 

b.  The  Revolutionary  Period 1 00 

c.  The  Confederate  Period         .........  101 

Attempts  to  work  out  of  the  Confederate  System;    Bowdoin  and  Hamilton  .  102 

The  Annapolis  Convention,  1786  ........  103 

The  Philadelphia  Convention,  1787;  revolutionary  nature  of  its  labors    .      104-108 

CHAPTER   III.     HISTORY  OF  THE   FORMATION   OF  THE   CONSTI- 
TUTION   OF  THE   GERMAN    EMPIRE. 

The  genesis  of  the  modern  German  state  goes  back  to  the  Carolingian  con- 
stitution :  The  Empire  of  Charlemagne  ......     109 

Disintegration  thereof  and  formation  of  The  Holy  Roman  Empire        .         .110 
The   Hohenstaufen  Emperors;    Attempt  of  Maximilian  I  to  check  particu- 
larism   .         .         .         .  .         .         .         .         .         •  .         .         .Ill 

Charles  V;  The  Thirty  Years' War 112 

The  destruction  of  the  Empire,   1806;   The  German  Confederation,  1815- 

1866 113 

The  effort  of  Prussia  to  form  a  national  state,  1866        .         .         .         .         .114 
The    Schleswig-Holstein   dispute   and   Prussian   Ultimata   of   14-15   June, 

1866 115 

Results  of  the  Austro-Prussian  War  of  1866         .         .         .         .         .         .116 

Foundation  of  the  North  German  Union,  1866 117,118 

The  Zollverein;   Treaties  between  the  North  German  Union  and  the  South 

German  States;    Foundation  of  the  Empire    .  .         .         .         .         .119 

The  organizations  which  participated  in  the  formation  of  the  constitutions  of 

the  North  German  Union  and  the  German  Empire         .         .         .         .120 

The  theory  that  the  Federal  Council  represented  the  sovereignty  in  ordaining 

the  constitution     .         .  .  .  .         .         .         .         .         .         .121 

Historical  objections  to  this  theory :    the   Convention   Parliament  was  the 

organization  of  the  sovereignty 122,123 

Technical  objections  to  the  theory  which  regards  the  Federal  Council  as  the 

organization  of  the  sovereignty 123,124 


xii  Table  of  Contents. 


CHAPTER   IV.    THE   HISTORY   OF  THE   FORMATION   OF  THE 
FRENCH   CONSTITUTION. 

PAGE 

The   Carolingian  constitution   the   point   of   departure :    The   Aristocratic 

State !25.  126 

The  Absolute  Monarchy 127 

The  Revolution  of  1789 J28 

The  Directory,  Consulate,  Empire  and  Restored  Monarchy  .         .         .         .129 
The  Orleans  Monarchy,  Republic  of  1848,  and  Coup  d'etat  of  185 1       .         .     130 

The  Franco-German  War,  1870 131 

Reorganization  of  the  state,  1871 I32 

The  plebiscite  in  the  French  state 133 

All  of  the  four  above-mentioned  states  have  reached  the  Democratic  stage  .     134 


Part  II.     Comparative  Constitutional  Law. 

BOOK  I.     THE  ORGANIZATION  OF  THE  STATE  WITHIN 

THE   CONSTITUTION. 
The  three  fundamental  parts  of  a  complete  constitution         .         .         .         -137 

CHAPTER   I.    THE   ORGANIZATION   OF  THE   STATE  IN  THE 
BRITISH    CONSTITUTION. 

The  House  of  Commons  determines  the  law  which  regulates  constitutional 

questions       .         .         .         •         •         •         •         •         •         •         •  i3° 

The  newly  elected   House  of  Commons  is  the  organization  of  the  state 

within  the  constitution  and  back  of  the  constitution       .         .         .         -139 

Advantages  and  disadvantages  of  this  organization        ....      140,  141 

CHAPTER  II.    THE  ORGANIZATION  OF  THE  STATE  IN  THE  CON- 
STITUTION  OF  THE  UNITED   STATES. 

Constitutional  Provisions *42 

Complex  organization  of  the  state  within  the  constitution      ....     143 

1.  An  initiating  general  convention  with  ratifying  conventions  in  three- 

fourths  of  the  states J43>  x44 

2.  Initiation  by  Congress  with  ratification  by  commonwealth  legislatures        .     144 
Advantages  and  disadvantages  of  this  organization   .         .         .         .  .145 

3.  Ratification  in  such  manner  as  Congress  may  direct  .         .         •         .146 
Practice  of  Congress  in  treating  the  origination  of  amendments  as  exempt 

from  the  veto  power  of  the  President     .  147 

The  submission  of  proposed  amendments  to  the  ratifying  conventions  or 

legislatures     ........••••  !4° 

Revision  of  their  action  by  the  ratifying  bodies 149 


Table  of  Contents.  xiii 

PAGE 

Conditional  ratification 150 

Criticism  of  the  organization  of  the  state  in  the  constitution  of  the  United 
States    .         .         .         .         .         .         .         .         .         .         .         .         -151 

Repetition  of  vote  a  preferable  method  for  securing  deliberation       .         .152 
Such  an  organization  of  the  state   attainable  legally  only  by  amend- 
ment      153,  154 

CHAPTER    III.      THE     ORGANIZATION    OF    THE    STATE    WITHIN 
THE  GERMAN   CONSTITUTION. 

Method  of  Amendment :  The  usual  course  of  legislation        ....     155 
General  limitation:  The  extraordinary  majority  in  the  Bundesrath         .      156,  157 
Special  limitation :  Provisions  guaranteeing  specific  rights  to  certain  com- 
monwealths cannot  be  changed  except  with  the  consent  of  the  common- 
wealth so  privileged        .         .         .         . 157 

Enumeration  of  these  specific  rights :   I.  Specific  powers       .         .         .      158-160 
2.  Specific  exemptions :  Bavaria   ........      160,  161 

Wurtemberg 161 

Baden;    Oldenburg  . .         .     162 

Manner  in  which  the  will  of  the  privileged  commonwealth  is  expressed         .     162 
The  specific  limitation  subject  to  the  general  limitation  .         .         .         .163 

Criticism  of  this  organization  of  the  state:  (1)  The  power  back  of  the 
constitution  is  the  German  people  under  the  lead  of  the  Prussian 
organization  ............     163 

(2)  A  single  prince  may  arrest  constitutional  development   .         .         .         .164 

(3)  Confusion  of  state  with  government 165-167 

CHAPTER     IV.      THE    ORGANIZATION    OF    THE    STATE    IN    THE 
FRENCH   CONSTITUTION. 

Constitutional  Provisions 168 

Organization  and  Powers  of  the  National  Assembly       .         .         .         .         .160 

Theory  that  the  National  Assembly  may  consider  subjects  which  one  house 

has  not  resolved  to  consider  ........      169,  170 

Power  of  the  President  to  dissolve  the  National  Assembly    ....     171 

Self-limitation  by  the  National  Assembly       .         .         .         .         .         .         .172 

Criticism  of  this  organization         .         . 1 72,  1 73 

BOOK  II.     INDIVIDUAL  LIBERTY. 

CHAPTER  I.     THE  IDEA,  THE  SOURCE,  THE  CONTENT,  AND  THE 
GUARANTY   OF  INDIVIDUAL   LIBERTY. 

The  Idea  of  individual  liberty;  the  existence  of  a  constitutional  individual 
liberty,  the  great  distinction  between  the  modern  state  and  mediaeval 
and  antique  state    .         .         .         .         .         .         .         ,         ,         .      174,  175 

The  source  of  individual  liberty  —  the  state,  not  nature  .         .         .      175— 17^ 


xiv  Table  of  Contents. 

PAGE 

The  Content  of  individual  liberty 177,178 

The  Guaranties  of  individual  liberty.     In  this  point  the  United  States  far 

ahead  of  the  European  states  .         .         .         .         .         .  178,  179 

Guaranties  in  the  German  Imperial  System 179,  180 

In  the  French  System  ..........  180,  181 

In  the  English  System 182,  183 


CHAPTER  II.     THE  SYSTEM  OF  INDIVIDUAL  LIBERTY  PROVIDED 
IN  THE   CONSTITUTION   OF  THE  UNITED   STATES. 

Theory  of  1 789-1 860  that  the  Commonwealths  are  the  defenders  of  individ- 
ual liberty;    the  first  ten  amendments      .......     184 

Lesson  of  1789-1860  that  individual  liberty  is  national:  the  XIII  and  XIV 

Amendments;    Analysis  of  individual  liberties         .....     185 

A.  Immunities  against  the  Central  Government. 

I.  Personal  immunities    .         .         .         .         .         .         .         .         .         .185 

1.  Bills  of  attainder  and  ex  post  facto  laws  prohibited  .         .         .     186 

2.  General  warrants  prohibited    .         .         .         .         .         .         .         .186 

3.  Suspension  of  writ  of  habeas  corpus  in  time  of  war  only.         .         .     187 

4.  Excessive  bail  prohibited         .         .         .         .         .         .         .         .187 

5.  Unreasonable  delay  in  trial  prohibited     .         .         .         .         .         .187 

6.  Indictment  requisite  for  prosecution  for  crime  ....     187 

7.  Trial  by  jury    .         .         .         .         . 187 

8.  Due  process  of  law  must  be  preserved  on  the  trial  .         .         .         .188 

9.  Treason  defined  in  the  constitution  ......     189 

10.  Excessive  fines  and  cruel  or  unusual  punishments  prohibited  .         .189 

11.  a.  Freedom  of  speech  and  of  the  press 189 

The  sedition  law  of  1798     .  190 

In  the  District  of  Columbia  and  the  territories    .         .         .      191,  192 

b.  Freedom  of  assembly  and  of  petitioning  the  government  for  the 

redress  of  grievances     .         .         .         .         .         .         .         .192 

Distinction   between   Commonwealths   and   territories  in  this 
respect ...........     193 

c.  Freedom  of  religion  and  worship 193 

Same  distinction        .         .         . 194 

II.  The  Immunities  in  respect  to  private  property. 

The  subjects  of  private  property  in  Commonwealths  and  territories       .     195 

1.  a.  All  bills  for  raising  revenue  must  originate  in  the  House  of  Rep- 

resentatives .         .         . .196 

b.  All  appropriations  of  money  shall  be  made  by  law      .         .         .     197 

c.  Private  property  shall  not  be  taken  for  public  use  without  just 

compensation         .         .         .         .         .         .         •         .  197 

Due  process  of  law  in  exercising  the  right  of  eminent  domain 

explained       ..........      198 

2.  Procedure  in  the  exercise  of  the  power  of  taxation  .... 


Tabic  of  Contents. 


xv 


PAGE 
198 
199 
199 


199 
199 
200 
200 
200 
200 


thereby 


a.  Taxes  on  exports  from  Commonwealths  forbidden 

b.  Direct  taxes  shall  be  levied  in  proportion  to  the  population 

c.  The  rate  of  taxation  shall  be  uniform 

d.  The  general  government  may  not  tax  the  necessary  governmental 

instrumentalities  of  the  Commonwealths 
3.  Immunities  against  judicial  procedure 

a.  General  search  warrants  prohibited    . 

b.  Trial  by  jury 

c.  Billeting  of  soldiers  on  citizens  regulated 
Implied  exceptions  ...... 

B.  Immunities  against  the  Commonwealths. 
I.  Personal  Immunities. 

1.  No  "state  "  shall  pass  any  bill  of  attainder  or  ex  post  facto  law,   201,  202 

2.  Slavery  and  involuntary  servitude  except  as  a  punishment  for  crime 

abolished    ...... 

Interpretation  of  the  XIII  Amendment 

The  social  incidents  of  involuntary  servitude  not  affected 

Enumeration  of  the  civil  incidents  that  are  abolished 

Two  avenues  of  approach  to  the  civil  immunity 

(a)  Apprenticeship  laws  ..... 

Doctrine  of  Turner's  Case         .... 

(£)  As  a  punishment  for  crime         .... 

3.  The  XIV  Amendment. 
Necessity  therefor  ....... 

Analysis  of  the  XIV  Amendment    .... 

a.  No  "  state  "  shall  deprive  any  person  of  life,  liberty  or  property 

without  due  process  of  law,  or  deny  to  any  person  within  its 

jurisdiction  the  equal  protection  of  the  laws  .... 

Civil  Rights  Acts  of  1870  and  1875 

Interpretation  by  the  Supreme  Court :  "  state  "  defined 

"  Person,"  "  life,"  "  liberty  "        ....... 

"  Due  process  of  law  "  defined  . 

The  XIV  Amendment  does  not  interfere  with  the  police  power 

of  the  Commonwealths  —  doctrine  of  Barbier  v.  Connolly        .     213 
"  Police  power  "  defined     ........     213 

Etymology  and  history  of  the  term 214,215 

Principles   governing    the    police   power   in   modern   political 

science  .........       215,216 


202 
203 
204 
205 
205 
205 
206 

206,  207 

207,  208 


208 

.     209 

.     210 

.     211 

21 1,  212 


"  Equal  protection  of  the  laws  "  defined      .         .    '     . 

No  state  shall  make  or  enforce  any  law  which  shall  abridge  the 

privileges  and  immunities  of  citizens  of  the  United  States 

Who  are  citizens  of  the  United  States 

History  of  the  term     .......•• 

Citizenship  of  the  United  States  is  conferred  by  the  constitution 

of  the  United  States 

Confusion  of  thought  on  this  subject 


217 

218 
218 
219 

219 
220 


xvi  Table  of  Contents. 


PAGE 


This  provision   of   the   XIV   Amendment   is  not   all-compre- 
hensive   ..........     220-222 

The  term  "  subject  to  its  jurisdiction  "  defined    ....     222 

The  doctrine  of  allegiance  ........     223 

Privileges    and   immunities   of   citizens   of   the    United    States 
enumerated      .  .  .         .         .         .  .         .         .         .     224 

The  nationalization  of  civil  liberty  the  first  task  in  the  post- 
bellum  readjustment 225 

Doctrine  of  The  Slaughter  House  Cases     .....     226 

The  dissenting  opinion 227 

Discussion  of  the  doctrine  of  The  Slaughter  House  Cases  .      228-230 
The  inhibition  of  this  clause  directed  against  all  the  officers  of 
the  commonwealth  .........     230 

Doctrine  of  ex  parte  Virginia      .......     231 

4.  The  regulation  of  inter-commonwealth  commerce,  and  commerce 

with  the  Indian  tribes  is  exclusively  national       ....     232 

II.  Immunities  in  regard  to  Private  Property. 

1.  The  inhibition  against  levying  import  tonnage  or  port  dues,  and 

against  taxing  the  necessary  instrumentalities  of  the  general  gov- 
ernment, franchises  conferred  by  the  general  government,  and 
receipts  of  inter-commonwealth  traffic;  the  regulation  of  the 
exercise  of  eminent  domain         .......     233 

2.  Against  making  anything  but  gold  and  silver  a  legal  tender    .         .     234 

3.  Against  restricting  foreign  and  inter-commonwealth  commerce        .     234 

4.  Against  impairing  the  obligation  of  contracts  ....     234 
The  prohibition  directed  against  commonwealth  constitution  and 

legislation 234 

Terms  "  contract,"  "  obligation  "  and  "  impair  "  defined  .         .     235 

This  provision  enables  a  commonwealth  to  limit  its  power  to  alter 

its  judicial  procedure  ........      236,  237 

But  not  to  limit  its  police  power     .......     237 

It  may  limit  the  exercise  of  its  taxing  power  ....      238,  239 

But  not  of  its  power  of  eminent  domain  .....     239 

The  doctrine  that  there  is  no  United  States  Common  Law      .         .     240 
The  XI  Amendment  interposes  a  technical  difficulty  to  the  enforce- 
ment of  the  XIV  Amendment     .......     240 

Wise  interpretation  of  the  XI  Amendment      .....     241 

Doctrine    of    Poindexter   v.   Greenhow  —  The   Virginia    Coupon 
Cases 242,  243 

5.  Against  depriving  any  person  of  property  without  due  process  of 

law,  and  abridging  the  privileges  and  immunities  of  citizens  of 

the  United  States  as  to  property  ......     244 

6.  Against  exercising  powers  over  matters  exclusively  national     .         .     244 
'.  The  Suspension  of  the  Immunities. 

Necessity  for  the  suspension;   temporary  suspension  of  immunities  in  the 

Ancient  Germanic  state 245 


Table  of  Contents.  xvii 

PAGE 

In  the  United  States  constitution 246 

Suspension  of  the  guaranties  of  civil  liberty,  1 861 247 

Suspension  of  the  writ  of  Habeas  Corpus 248 

Doctrine  of  Milligan's  Case 248-250 

The  dissenting  opinion 251 

Discussion  of  Milligan's  Case 251,252 

CHAPTER   III.     CIVIL   LIBERTY   AS    PROVIDED   IN  THE  GERMAN 
IMPERIAL  CONSTITUTION. 

A.  Immunities  of  the  Individual  against  the  powers  of  the  General  Govern- 

ment. 

There  are  no  express  exemptions;   implied  are  as  to         .         .         •         .  253 

1.  The  period  of  active  military  service 253 

2.  The  subject  of  taxation 253 

3.  Freedom  of  conscience   .........  254 

The  imperial  legislature  the  definer  and  supporter  of  civil  liberty     .         .  254 

No  constitutional  immunities  exist  in  Alsace-Lorraine      ....  254 

B.  Immunities  of  the  Individual  against  the  Commonwealth. 

1.  A  common  citizenship  is  created  by  the  constitution,  not  an  im- 

perial citizenship  .         .         .         .         .         .         .         .         .  255 

Analogy  of  the  United  States  constitution 256 

2.  Taxation  of  inter-commonwealth  commerce  is  prohibited         .         .  256 

3.  Implied  immunities  as  to  matters  under  exclusively  national  con- 

trol      257 

4.  Greater  security  against  the  commonwealths  than  against  the  im- 

perial government;  the  imperial  judiciary;  the  federal  council    .     258 
C  The  Suspension  of  Civil  Liberty. 

Implied  powers  of  the  imperial  government     ......     259 

Express  vesting  of  the  power  to  suspend  the  immunities  in  the  emperor,     260 
Regulation  of  this  power  by  legislation    ......      260,  26 1 

CHAPTER  IV.    THE  SCIENTIFIC  POSITION  AND  THE  TRUE  RELA- 
TIONS OF  CIVIL  LIBERTY  IN  THE  CONSTITUTION. 

Statutory  civil  liberty  of  Great  Britain  —  its  history 262 

History  of  civil  liberty  in  France  .........     263 

Requisites  of  a  perfect  constitution        .......      263,  264 

The  United  States  far  ahead  of  Europe  in  the  domain  of  civil  liberty    .         .     264 

APPENDICES. 

I.  The  Constitution  of  the  United  States  of  America  .        .       .  265 

II.  Verfassung  des  deutschen  Reichs 283 

III.  Verfassungs-urkunde  fur  den  Preussischen  Staat      .        .        .  313 

IV.  Lois  Constitutionnelles 33l 


TABLE   OF  CASES. 


Anderson  v.  Dunn,  ii  57. 

Arrowsmith  v.  Harmoning,  i  2IO,  231. 

Bank  Tax  Cases,  i  233;  ii  153. 

Barbier  v.  Connolly,  i  213. 

Beer  Company  v.  Massachusetts,  i  237. 

Bigelow  v.  Forrest,  i  189;   ii  149. 

Board  of  Liquidation  v.  McComb,  i  242. 

Bollman  Ex  parte,  i  186. 

Bollman  and    Swartwout  Ex  parte,  i 

189;   ii.  148. 
Boom  Company  v.  Patterson,  i  239;  ii 

153- 

Bors  v.  Preston,  ii  239. 
Boyd  v.  Alabama,  i  237. 
Boyd  v.  United  States,  i  188. 
Boyle  v.  Zacharie,  ii  146. 
Bronson  v.  Kinzie,  i  235,  236,  237. 
Brown  v.  Maryland,  i  233. 
Burford  Ex  parte,  i  187. 

Calderz/.  Bull,  i  186. 

California  v.  Central  Pacific  Railroad 
Company,  i  233. 

Callan  v.  Wilson,  i  188. 

Cardwell  v.  American  Bridge  Company, 
ii  138. 

Carlisle  v.  United  States,  ii  148. 

Cherokee  Nation  v.  Georgia,  ii  327. 

Cherokee  Tobacco,  ii  136. 

Chirac  v.  Chirac,  ii  145. 

Chisholm  v.  Georgia,  ii  325. 

Civil  Rights  Cases,  i  203,  205 ;   ii  326. 

Clark  v.  Barnard,  i  241. 

Clinton  v.  Engelbrecht,  ii  332. 

Coe  v.  Errol,  i  198;   ii  135. 

Cohens  v.  Virginia,  i  241;   ii  327,  331. 

Cole  v.  La  Grange,  i  233. 

Collector  v.  Day,  i  193,  199;   ii  151. 

Cooley  v.  Wardens  of  the  Port  of  Phil- 
adelphia, ii  136. 

Cummings  v.  Missouri,  i  201. 


Dartmouth  College  v.  Woodward,  i  235. 

Davis  v.  Gray,  i  242. 

Dobbins    v.    Commissioners    of    Erie 

County,  i  233;   ii  153. 
Dred  Scott  v.  Sanford,  i  219. 

Edwards  v.  Kearzey,  i  235,  237. 
Effinger  v.  Kenney,  i  237. 
Elk  v.  Wilkins,  i  223. 

Fletcher  v.  Peck,  i  235. 
French,  Trustee,  v.  Hay,  ii  332. 
Foster  v.  Neilson,  ii  136. 
Fox  v.  Ohio,  ii  147. 

Gardner  v.  The  Collector,  ii  256. 
Garland  Ex  parte,  i  186;  ii  262. 
Georgia  v.  Stanton,  i  197;  ii   165,  327. 
Gilman  v.  Lockwood,  ii  146. 
Gloucester   Ferry    Company    v.    Penn, 

ii  134.  135- 
Green  v.  Biddle,  i  236. 
Gunn  v.  Barry,  i  237. 

Hanauer  v.  Doane,  ii  148. 
Hawkins  v.  Barney,  i  236. 
Head  Money  Cases,  i  199;  ii  151. 
Henderson   et  at.  v.   Mayor    of    New 

York  et  at.,  i  232,  234;   ii  135,  136. 
Hollingsworth  v.  Virginia,  i  149. 
Hopt  v.  Utah,  i  186. 
Howard  v.  Bugbee,  i  237. 
Hurtado  v.  California,  i  212. 
Huse  v.  Glover,  i  233. 
Hylton  v.  United  States,  i  199;  ii  15 1. 

Jackson  Ex  parte,  ii  139,  140. 
Jefferson  Branch  Bank  v.  Skelly,  i  238. 

240. 
Juillard  v.  Greenman,  ii  142,  167. 

Kilbourn  v.  Thompson,  ii  57. 
Kring  v.  Missouri,  i  186. 


XX 


Table  of  Cases. 


Loan  Association  v.  Topeka,  i  233. 
Louisiana  v.  New  Orleans,  i  235. 
Luther  v.  Borden,  ii  165,  327. 

McCracken  v.  Hayward,  i  235,  236,  237. 

McCulloch  v.  Maryland,  i  233;   ii  153. 

Mackin  v.  United  States,  i  187. 

Marbury  v.  Madison,  ii  329. 

Martin  v.  Mott,  ii  260. 

Miller  v.  United  States,  ii  150. 

Milligan  Ex  parte,  ii  261. 

Mississippi  v.  Johnson,  ii  165,  245,  327. 

Morgan  Steamship  Company  v.  Louisi- 
ana Board  of  Health,  ii  135,  136. 

Murray's  Lessee  v.  Hoboken  Land  and 
Improvement  Company,  i  198. 

National  Bank  v.  County  of  Yankton, 
ii  161. 

Neal  v.  Delaware,  ii  42. 

Nelson  v.  St.  Martin's  Parish,  i  235. 

New  Orleans  Gas  Company  v.  Louisi- 
ana Light  Company,  i  234. 

New  Orleans  Waterworks  Company  v. 
Louisiana  Sugar  Refining  Company, 
i  234. 

New  Orleans  Waterworks  Company  v. 
Rivers,  i  235. 

New  York  City  v.  Miln,  i  213;  ii  135. 

Ogden  v.  Saunders,  ii  146. 

Osborn  v.  United  States  Bank,  ii  325. 

Parkersburg  v.  Brown,  i  233. 

Paul  v.  Wisconsin,  i  235. 

Pembina  Mining  Company  v.  Pennsyl- 
vania, i  211. 

Pennoyer  v.  Neff,  i  21 1. 

Pensacola  Telegraph  Company  v.  West- 
ern Union  Telegraph  Company,  ii 
140, 

Poindexter  v.  Greenhow,  ii  331. 

Presser  v.  Illinois,  ii  155. 

Prize  Cases,  ii  133,  150. 

Railroad  Company  v.  Fuller,  ii  1 38. 

Reynold  v.  United  States,  i  194. 

Robbins  v.  Shelby  Taxing  District, 
i  233;   ii  137. 

Rotterman  v.  Western  Union  Tele- 
graph Company,  i  233. 


Saint  Tammany   Waterworks  V.  New 

Orleans  Waterworks,  i  235. 
Slaughter  House  Cases,  i  221,  226. 
Sohn  v.  Watterson,  i  236. 
Springer  v.  United  States,  ii  151. 
Stockale  v.  Hansard,  ii  71. 
Stoutenburgh  v.  Hennick,  ii  160. 
Strauder  v.  West  Virginia,  i  217. 
Sturgis  v.  Crowninshield,  i  236;   ii  146. 

Telegraph  Company  v.  Texas,  ii  138. 

Tennessee  v.  Sneed,  i  235. 

Terry  v.  Anderson,  i  236. 

Thirty  Hogsheads  of  Sugar  v.  Boyle, 

i  54- 

Turner  v.  Maryland,  i  233. 
Turpin  v.  Burgess,  i  198;  ii  135. 

United  States  v.  Bevans,  i  186. 

v.  Coolidge,  i  186. 

v.  Hudson,  i  186. 

v.  Jones,  i  198;  ii  153. 

v.  Kagama,  ii  139. 

v.  Lee,  i  241. 

v.  Ortega,  ii  329. 

v.  Railroad  Company,  ii  1 51. 

v.  Reese,  ii  42. 

v,  Schurz,  i  241. 

v.  Smith,  ii  133. 

v.  The  Pirates,  ii  134. 
University  v.  People,  i  238. 

Van  Brocklin  v.  Tennessee,  i  233;    ii 

153- 
Vanhorne  v.  Dorrance,  i  235. 
Virginia  Coupon  Cases,  ii  166,  327. 
Virginia  Ex  parte,  i  208,  210,  230. 

Wabash  etc.  Railroad  Company  v.  XI13- 

nois,  i  232,  233,  234;   ii  137. 
Walker  v.  Whitehead,  i  235. 
Ward  v.  Maryland,  i  230. 
Watson  v.  Jones,  i  228. 
Wells  Ex  parte,  ii  262. 
Welton  v.  Missouri,  i  232,  234. 
Wheaton  v.  Peters,  ii  328. 
Williams  v.  Bruffy,  i  234. 
Wilson  Ex  parte,  i  187. 

Yick  Wo.  v.  Hopkins,  i  211. 


Part    I. 
POLITICAL   SCIENCE. 


Book    I. 

THE    NATION. 

±^e6 

CHAPTER  I. 

THE   IDEA   OF   THE   NATION. 

Primarily  and  properly  the  word  nation  is  a  term  of  eth- 
nology, and  the  concept  expressed  by  it  is  an  ethnologic 
concept.  It  is  derived  from  the  Latin  nascor,  and  has  refer- 
ence, therefore,  primarily  to  the  relations  of  birth  and  race- 
kinship.  It  has  become,  however,  one  of  the  commonest 
catchwords  of  modern  political  science.  Especially  is  it  so 
used  and  abused  by  French,  English  and  American  publicists. 
The  Germans,  on  the  other  hand,  are  more  exact  and  scien- 
tific in  their  political  and  legal  nomenclature.  They  confine 
the  word  and  the  idea  more  nearly  to  their  original  and  natural 
place,  and  find  another  term  and  concept  for  political  and 
legal  science.  We  shall  do  well  to  imitate  their  example ; 
and  we  shall  escape  much  confusion  in  thought  and  language 
by  fixing  clearly  the  meaning  of  this  term  in  our  own  minds, 
and  using  it  only  with  that  meaning.  As  an  abstract  defini- 
tion, I  would  offer  this  :  A  population  of  an  ethnic  unity, 
inhabiting  a  territory  of  a  geographic  unity,  is  a  nation. 

There  is,  however,  an  objection  to  this  definition.  The 
nation  as  thus  defined  is  the  nation  in  perfect  and  com- 
pleted existence,  and  this  is  hardly  yet  anywhere  to  be  found. 
Either  the  geographic  unity  is  too  wide  for  the  ethnic,  or  the 
ethnic  is  too  wide  for  the  geographic,  or  the  distinct  lines  of 


2  The  Nation. 

the  geographic  unity  partially  fail,  or  some  of  the  elements 
of  the  ethnic  unity  are  wanting. 

Further,  the  definition  requires  explanation.  By  geo- 
graphic unity  I  mean  a  territory  separated  from  other  ter- 
ritory by  high  mountain  ranges,  or  broad  bodies  of  water,  or 
impenetrable  forests  and  jungles,  or  climatic  extremes, — 
such  barriers  as  place,  or  did  once  place,  great  difficulties  in 
the  way  of  external  intercourse  and  communication.  By 
ethnic  unity  I  mean  a  population  having  a  common  language 
and  literature,  a  common  tradition  and  history,  a  common 
custom  and  a  common  consciousness  of  rights  and  wrongs. 
Of  these  latter  the  most  important  element  is  that  of  a  com- 
mon speech.  It  is  the  basis  of  all  the  rest.  Men  must  be 
able  to  understand  each  other  before  a  common  view  and 
practice  can  be  attained.  It  will  be  observed  that  I  do  not 
include  common  descent  and  sameness  of  race  as  qualities 
necessary  to  national  existence.  It  is  true  that  they  contrib- 
ute powerfully  to  the  development  of  national  unity ;  but  a 
nation  can  be  developed  without  them,  and  in  spite  of  the 
resistance  which  a  variet)  in  this  respect  frequently  offers. 
Undoubtedly,  in  earliest  times,  sameness  of  race  was  pro- 
ductive of  a  common  language  and  a  common  order  of  life ; 
but  the  early  mixing  of  races  by  migration,  conquest  and 
intermarriage  eliminated,  in  large  degree,  the  influence  of  this 
force.  Territorial  neighborhood  and  intercourse  soon  became 
its  substitutes.  In  the  modern  era,  the  political  union  of 
different  races  under  the  leadership  of  a  dominant  race  re- 
sults almost  always  in  national  assimilation.  Thus,  although 
the  nation  is  primarily  a  product  of  nature  and  of  history, 
yet  political  union  may  greatly  advance  its  development,  as 
political  separation  may  greatly  retard  it.  Sameness  of  re- 
ligion was  once  a  most  potent  power  in  national  develop- 
ment, but  the  modern  principle  of  the  freedom  of  religion 
has  greatly  weakened  its  influence. 

Where  the  geographic  and  ethnic  unities  coincide,  or  very 


The  Idea  of  the  Nation.  3 

nearly  coincide,  the  nation  is  almost  sure  to  organize  itself 
politically,  —  to  become  a  state.  There  can,  however,  be 
political  organization  without  this.  The  nation  must  pass 
through  many  preliminary  stages  in  its  development  before  it 
reaches  the  political,  and  meanwhile  other  forces  will  control 
in  larger  degree  the  formation  of  the  state.  Some  forms  of 
political  organization  are  even  based  upon  national  hostility 
between  different  parts  of  the  population  subject  to  them. 
This  is  almost  always  the  case  in  the  despotic  and  absolute 
systems,  as  I  shall  point  out  a  little  more  particularly  further 
on.  The  Emperor  Francis  II  of  Austria  is  reported  to  have 
once  said  to  the  French  ambassador  at  his  court  :  "  Mes 
peuples  sont  etrangers  les  uns  aux  autres  et  c'est  tant  mieux. 
lis  ne  prennent  pas  les  memes  maladies  en  meme  temps. 
En  France,  quand  la  fievre  vient,  elle  vous  prend  tous  le 
meme  jour.  Je  mets  des  Hongrois  en  Italie  et  des  Italiens 
en  Hongrie.  Chacun  garde  son  voisin  ;  ils  ne  se  comprennent 
pas  et  se  detestent.  De  leurs  antipathies  nait  l'ordre  et  de 
leur  haine  reciproque  la  paix  generale."  1  It  is  only  when 
the  state  reaches,  in  the  course  of  its  development,  the 
popular  or  democratic  form,  that  national  unity  exerts  its 
greatest  influence.  In  fact,  as  I  shall  endeavor  to  show 
further  on,  the  existence  of  national  unity  is  the  indispensable 
condition  for  the  development  of  that  form. 

On  the  other  hand,  where  several  nations  are  embraced 
within  the  same  state,  and  the  national  feeling  and  con- 
sciousness rise  to  strength  and  clearness,  there  is  danger  of 
political  dissolution.  The  mere  mixture  of  a  variety  of 
nationality  over  the  same  territory  will  not,  however,  neces- 
sarily have  this  effect.  This  more  frequently  leads  to  a 
centralization  of  government,  as  I  shall  explain  later. 

Not  all  nations,  however,  are  endowed  with  political  capacity 
or  great  political  impulse.     Frequently  the  national  genius 

1  Bluntschli,  Lehre  vom  modernen  Stat,  B.  I,  S.  no,  Anmerkung. 


4  The  Nation. 

expends  itself  in  the  production  of  language,  art  or  religion ; 
frequently  it  shows  itself  too  feeble  to  bring  even  these  to  any 
degree  of  perfection.  The  highest  talent  for  political  organ- 
ization has  been  exhibited  by  the  Aryan  nations,  and  by  these 
unequally.  Those  of  them  remaining  in  the  Asiatic  home 
have  created  no  real  states  ; 1  and  the  European  branches 
manifest  great  differences  of  capacity  in  this  respect.  The 
Celt,  for  instance,  has  shown  almost  none,  the  Greek  but  lit- 
tle, while  the  Teuton  really  dominates  the  world  by  his  supe- 
rior political  genius.  It  is  therefore  not  to  be  assumed  that 
every  nation  must  become  a  state.  The  political  subjection 
or  attachment  of  the  unpolitical  nations  to  those  possessing 
political  endowment  appears,  if  we  may  judge  from  history, 
to  be  as  truly  a  part  of  the  course  of  the  world's  civilization 
as  is  the  national  organization  of  states.  I  do  not  think  that 
Asia  and  Africa  can  ever  receive  political  organization  in 
any  other  way.  Of  course,  in  such  a  state  of  things,  the 
dominant  nation  should  spare,  as  far  as  possible,  the  language, 
literature,  art,  religion  and  innocent  customs  of  the  subject 
nation ;  but  in  law  and  politics  it  is  referred  wholly  to  its  own 
consciousness  of  justice  and  expedience. 

Lastly,  a  nation  may  be  divided  into  two  or  more  states  on 
account  of  territorial  separation,  —  as,  for  example,  the  Eng- 
lish and  the  North  American,  the  Spanish-Portuguese  and 
the  South  American,  —  and  one  of  the  results  of  this  divis- 
ion will  be  the  development  of  new  and  distinct  national 
traits. 

From  these  reflections,  I  trust  that  it  will  be  manifest  to 
the  mind  of  every  reader  how  very  important  it  is  to  distin- 
guish clearly  the  nation,  both  in  word  and  idea,  from  the 
state ;  preserving  to  the  former  its  ethnic  signification,  and 
using  the  latter  exclusively  as  a  term  of  law  and  politics. 

1  Bluntschli,  Altasiatische  Weltideen. 


Distribution  of  Nations  and  Nationalities. 


CHAPTER   II. 

THE    PRESENT    GEOGRAPHICAL    DISTRIBUTION    OF    NATIONS 
AND    NATIONALITIES. 

I  make  the  distinction  indicated  in  the  heading  of  the  chap- 
ter between  the  distribution  of  nations  and  of  nationalities 
in  order  to  emphasize  a  very  important  difference.  When 
I  speak  of  the  distribution  of  nations,  I  refer  to  populations 
of  different  nationality  occupying  separate  territories.  When, 
on  the  other  hand,  I  speak  of  the  distribution  of  nationalities, 
I  have  in  mind  populations  of  different  nationality  scattered 
over  the  same  territory.  The  political  results  of  these  two 
kinds  of  distribution  are  very  different ;  and  our  political  sci- 
ence will  suffer  confusion  of  thought  unless  we  keep  this  dis- 
tinction clearly  in  mind. 

I  will  not  treat  this  topic  universally,  but  only  in  its  appli- 
cation to  the  states  of  Europe  and  to  the  United  States  ; 
because,  as  I  have  before  remarked,  only  Europe  and  North 
America  have  succeeded  in  developing  such  political  organi- 
zations as  furnish  the  material  for  scientific  treatment,  and 
though  the  subject  be  not  one  directly  of  political  science, 
yet  it  is  entirely  in  its  relation  to  political  science  that  it  has 
interest  for  us. 

I. 

If  we  regard  exclusively  the  reasons  of  physical  geog- 
raphy, we  ought  to  find  nine  national  unities  upon  the  terri- 
tory to  which  we  give  the  name  of  Europe.  I  do  not  speak 
of  the  "  continent "  of  Europe,  because  Europe  is  really  the 
great  northwestern  peninsula  of  the  continent  of  Asia,  and 
because  I  wish  to  include  in  the  territory  of  Europe  the  Brit- 


6  The  Nation. 

ish  Islands.  These  geographical  unities  are  none  of  them 
perfect,  and  they  vary  greatly  in  distinctness  of  boundary 
and  in  superficial  extent. 

As  the  first  and  most  perfect  of  these,  I  would  designate 
the  southwestern  peninsula:  bounded  by  the  Mediterranean 
Sea  on  the  east;  by  the  same,  the  Strait  of  Gibraltar  and 
the  Atlantic  Ocean  on  the  south ;  by  the  Atlantic  Ocean  on 
the  west,  and  by  the  Bay  of  Biscay  and  the  Pyrenees  on  the 
north  ;  lying,  we  may  roughly  say,  between  longitudes  2°  east 
and  90  west,  and  between  latitudes  360  and  44°  north  ;  form- 
ing thus  very  nearly  a  square,  and  having  a  superficial  area 
of  about  230,000  square  miles.1 

As  second,  and  next  in  the  perfection  of  natural  boundaries, 
I  would  put  the  islands  lying  between  the  North  Sea,  the 
English  Channel,  and  the  Atlantic  Ocean  ;  filling  up  about 
two-thirds  of  the  surface  between  longitudes  2°  east  and  io° 
west,  and  latitudes  500  and  590  north,  and  having  a  superficial 
area  of  120,832  square  miles.2  The  chief  defect  in  the  unity 
of  this  territory  is  the  separation  of  the  large  western  island 
from  the  others  by  a  body  of  water  from  ten  to  sixty  miles  in 
breadth, — not  a  very  serious  break  in  itself  considered,  but 
one  which,  connected  with  other  unfavorable  conditions,  is 
sufficient  to  throw  many  impediments  in  the  way  of  an  uni- 
form and  easy  political  development. 

Third,  and  next  in  the  order  of  distinct  natural  boundary, 
I  would  place  the  territory  lying  between  the  Mediterranean 
Sea  and  the  Pyrenees  on  the  scuth,  the  Atlantic  Ocean  on 
the  west,  the  English  Channel  and  the  North  Sea  on  the 
north,  and  the  Maritime  and  Cottian  Alps,  the  Jura,  the 
Vosges  and  the  Ardennes  on  the  east.  Roughly  speaking,  it 
is  comprehended  between  longitudes  6°  east  and  2°  west,  and 

1  Encyclopaedia  Britannica,  Vol.  XXII,  Plate  6;  Statesman's  Yearbook,  1889, 
pp.  395  and  477. 

2  Encyclopaedia  Britannica,  Vol.  VIII,  Plate  9;   Statesman'*  Yearbook,  1889, 

P.  253- 


Distribution  of  Nations  and  Nationalities.        7 

between  latitudes  44°  and  510  north,  and  has  an  area  of  about 
220,000  square  miles.1  The  chief  defect  in  this  boundary  is 
on  the  northeast,  where,  from  the  present  city  of  Liege  to 
the  North  Sea,  there  is  no  physical  separation  of  the  terri- 
tory east  and  west,  unless  we  take  the  course  of  the  river 
Meuse.  I  believe  that  the  geographers,  the  historians  and 
the  political  scientists  are  now  about  agreed  upon  the  propo- 
sition that  rivers  are  not,  as  a  rule,  to  be  regarded  as  proper 
boundaries  of  geographic  unities.  They  are  the  diameters 
and  radii  of  such  unities  rather  than  the  circumference.  We 
must  therefore  consider  the  line  from  Liege  to  the  North 
Sea  —  whether  following  the  line  of  longitude,  or  that  of 
the  shortest  distance,  or  the  curvatures  of  the  Meuse  —  to  be 
artificial.  It  is  the  open  gateway  between  the  lands  of  the 
south  shore  of  the  North  Sea  and  the  Baltic  and  those  of 
the  English  Channel  far  to  the  south  and  west. 

Fourth,  following  still  the  order  of  geographic  perfection, 
I  would  reckon  the  middle  peninsula :  bounded  on  the  north, 
northeast  and  northwest,  by  the  Alps ;  and  on  the  east,  south 
and  west,  by  the  branches  of  the  Mediterranean.  It  lies 
obliquely  across  longitudes  70  and  180  east,  and  latitudes  37° 
and  470  north,  and  measures  in  square  miles  about  n6,ooo.2 
The  principal  defects  in  this  territory  as  a  geographic  unity 
are,  first,  its  great  length  as  compared  with  its  mean  breadth, 
—  it  is  more  than  seven  hundred  miles  long,  with  an  average 
width  of  about  one  hundred  miles,  —  second,  the  fact  that  the 
shoulder  of  the  peninsula  is  almost  cut  from  the  arm  oy  a 
range  of  mountains,  the  Apennines,  having  a  mean  elevation 
of  about  five  thousand  feet ;  and,  third,  the  fact  that  the 
whole  length  of  the  peninsula  is  separated  into  a  distinct  east 
and   west  side  by   this    same   mountain    range.     These  are 

1  Encyclopaedia  Britannica,  Vol.  VIII,  Plate  9;  Statesman's  Yearbook,  1889, 
pp.  43  and  86. 

2  Encyclopaedia  Britannica,  Vol.  VIII,  Plate  9;  Statesman's  Yearbook,  1889, 
pp.  356  and  521. 


8  The  Nation. 

serious  defects.  They  have  always  exercised,  and  do  still 
exercise,  unfavorable  influences  upon  the  national  develop- 
ment of  the  population  inhabiting  this,  in  many  respects, 
highly  favored  land. 

Fifth,  and  next  in  the  order  of  completeness  in  demarca- 
tion, I  would  place  the  eastern  peninsula.  It  has  a  marine 
boundary  on  all  sides  except  the  north.  On  the  north  the 
line  of  the  Balkans,  running  almost  parallel  with  the  lati- 
tude, furnishes  a  natural  separation  for  about  four-fifths  of 
the  distance  from  east  to  west.  At  the  latter  point  it  is  lost 
in  the  transverse  coast  ranges.  On  the  east,  also,  the  narrow- 
ness of  the  straits  separating  it  from  Asia  Minor  is  a  great 
defect.  The  great  topographical  irregularity  of  this  territory 
makes  it  impossible  to  fix  upon  any  one  or  upon  a  few  geo- 
graphic centres.  Its  contour  and  formation  are  favorable  to 
the  development  of  numerous  petty  differences  in  nationality 
It  is  very  difficult  to  fix  its  longitudinal  and  latitudinal  posi- 
tion in  general  terms.  We  may  help  ourselves  a  little  in  the 
fixing  of  our  conceptions  by  the  general  statement  that  it  lies 
between  190  and  270  east  longitude,  and  370  and  420  north 
latitude.1  It  has  a  superficial  area  of  about  100,000  square 
miles.2 

Sixth.  The  great  northern  peninsula  has  geographic  isola- 
tion, if  not  geographic  unity.  Its  boundary  is  one  of  nature 
upon  all  sides,  except  across  its  neck.  Here  an  artificial  line 
must  be  taken.  It  lies  obliquely  across  the  longitudes  50  and 
25°  east,  and  the  latitudes  550  and  700  north.3  Its  superficial 
area  is  about  300,000  square  miles.4  It  has  no  geographic 
centre.  A  long  mountain  range  on  the  west  coast,  descend- 
ing gradually  into  a  long  strip  of  low  land  on  the  east  coast, 
is  its  general  topographic  feature. 

1  Encyclopaedia  Britannica,  Vol.  VIII,  Plate  9. 

2  Statesman's  Yearbook,  1889,  pp.  325  and  538. 

3  Encyclopaedia  Britannica,  Vol.  VIII,  Plate  9. 

4  Statesman's  Yearbook  1S89,  pp.  496  and  507. 


Distribution  of  Nations  and  Nationalities.       9 

Seventh.  Next  in  the  order  of  the  principle  which  we  have 
been  following,  I  think  we  should  designate  the  territory 
bounded  by  the  Ardennes,  Vosges  and  Jura  on  the  west,  by 
the  Alps  and  Western  Carpathians  on  the  south  and  south- 
east, and  by  the  North  Sea  and  the  south  coast  of  the  Baltic 
on  the  north.  On  the  east  the  line  of  nature  fails.  From  the 
district  about  the  present  city  of  Cracow  we  must  reach  the 
Baltic,  either  upon  the  line  of  longitude,  or  that  of  shortest 
distance,  or  by  the  curvatures  of  the  river  Vistula,  —  all  of 
which  are  artificial,  from  our  standpoint.  The  line  of  shortest 
distance  measures  about  three  hundred  miles.  Here,  then,  is 
a  very  great  defect  in  boundary.  Here  is  the  broad  and  open 
way  from  the  far  east  into  the  middle  and  north  of  Europe. 
Moreover,  the  demarcation  of  this  territory  is  not  perfect  upon 
the  west.  From  the  northern  extremity  of  the  Ardennes  to 
the  North  Sea  is  only  a  surveyor's  line,  or,  at  best,  only  the 
line  of  a  narrow  river  (the  Meuse).  This  territory  is  there- 
fore exposed,  both  upon  the  east  and  the  west ;  and  what 
nature  has  withheld  from  it  must  be  made  good  by  art.  Its 
configuration  is  not  bad.  It  is  almost  a  square ;  lying  be- 
tween 6°  and  190  east  longitude,  and  46°  and  540  north  lati- 
tude,1 and  having  a  superficial  area  of  about  300,000  square 
miles.2  Its  topography  is  not  inharmonious,  though  present- 
ing much  variety. 

Eighth.  The  territory  bounded  on  the  north,  northwest 
and  northeast  by  the  Noric  Alps  and  the  Carpathians,  on  the 
east  by  the  Black  Sea,  on  the  south  by  the  Balkans,  and  on 
the  south  and  southwest  by  the  Carnic  and  Dinaric  Alps, 
forms  a  fair  geographical  unity.  It  is  the  valley  of  the  Dan- 
ube, from  the  point  where  this  greatest  of  European  rivers 
breaks  through  the  mountain  gate,  just  above  Vienna,  to  its 
mouth.  Its  configuration  is  rather  irregular.  It  lies,  for 
the  most  part,  between  longitudes  120  and  27°  east  and  lati- 

1  Encyclopaedia  Britannica,  Vol.  VIII,  Plate  9. 

3  Statesman's  Yearbook,  1889,  pp.  23,  58,  117,  378,  440,  521. 


io  The  Nation. 

tudes  420  and  49°  north,1  and  measures  in  square  miles  about 
280,00c2  It  has  several  very  serious  defects  in  natural  boun- 
dary. The  first  and  chiefest  is  on  the  east,  where  the  Carpa- 
thians, after  approaching  to  within  one  hundred  and  fifty 
miles  of  the  Black  Sea,  suddenly  swing  around  to  the  west, 
forming  an  acute  angle  about  the  district  of  the  present  city 
of  Kronstadt,  and  run  for  one  hundred  and  fifty  miles  almost 
due  west,  then,  turning  southerly,  cross  the  Danube,  forming 
the  celebrated  Iron  Gate,  and,  trending  southeastward  again, 
reach  almost  to  the  Balkans.  In  fact,  this  part  of  the 
boundary  is  so  very  faulty  that  it  appears  to  me  possibly 
more  scientific  to  exclude  the  district  south  and  east  of  the 
lower  Carpathians  from  this  territory,  and  connect  it  with 
the  ninth  division.  In  the  southwest,  between  the  Dinaric 
Alps  and  the  western  end  of  the  Balkans,  is  an  open  way ;  also 
in  the  northwest,  between  the  Noric  Alps  and  the  western 
Carpathians.  On  the  other  hand,  the  topography  is  more 
uniform  than  that  of  any  of  the  divisions  before  described. 

Ninth,  and  lastly.  The  territory  bounded  on  the  southwest 
by  the  Carpathians,  on  the  west  by  the  Baltic  Sea,  on  the 
north  by  the  Arctic  Ocean,  on  the  east  by  the  Obdorsk  and 
Ural  Mountains  and  the  Caspian  Sea,  and  on  the  south  by 
the  mountains  of  the  Caucasus  and  the  Black  Sea,  has  some 
of  the  qualities  of  a  geographical  unity,  connected  with  sev- 
eral serious  defects.  In  configuration  it  is  a  parallelogram 
not  much  removed  from  the  square.  It  lies,  for  the  most 
part,  between  longitudes  22°  and  6o°  east,  and  latitudes  450  and 
and  yo°  north,3  having  a  superficial  area  of  more  than  2,000,000 
square  miles.4  Its  topography  is  not  only  uniform,  but  posi- 
tively monotonous.  Its  natural  boundaries,  however,  break 
down  upon  almost  every  side  ;  in  the  west,  as  against  both 

1  Encyclopaedia  Britannica,  Vol.  VIII,  Plate  9. 

2  Statesman's  Yearbook,  1889,  pp.  23,  463,  538. 
8  Encyclopaedia  Britannica,  Vol.  VIII,  Plate  9. 
4  Statesman's  Yearbook,  1889,  p.  440. 


Distribution  of  Nations  and  Nationalities.       1 1 

divisions  six  and  seven ;  in  the  southwest,  against  division 
eight,  —  unless,  as  I  have  before  suggested,  the  valley  of  the 
Danube  below  the  Iron  Gate  be  connected  with  this  division, 
which  would  then  make  its  southwestern  boundary  the  south- 
ern Carpathians  and  the  Balkans.  This  is,  however,  a  greatly 
mooted  question,  and  one  pregnant  with  great  political  results. 
If  we  look  exclusively  to  the  reasons  of  physical  geography, 
however,  I  cannot  see  why  it  would  not  be  the  more  scientific 
disposition.  It  seems  to  me  that  ethnological  and  political 
considerations  have  been  allowed  to  warp  the  judgments  of 
many  of  the  geographers  in  regard  to  this  point.  Another 
most  serious  defect  is  upon  the  eastern  boundary,  where,  for 
six  hundred  miles,  nothing  but  the  Ural  River  separates  this 
territory  from  the  continent  of  Asia. 

Although  the  continent  of  North  America  is  between  three 
and  four  times  as  large  as  all  Europe,  yet  we  do  not  find  here 
the  geographic  variety  which  exists  there.  Regarding  only 
natural  geographic  boundaries,  we  can  hardly  make  out  more 
than  three  geographic  unities,  viz ;  the  territory  lying  be- 
tween the  Appalachian  range  and  the  Atlantic  seaboard ;  that 
bounded  by  the  Appalachian  range  and  the  North  Atlantic 
on  the  east,  the  Arctic  Sea  on  the  north,  the  Gulf  of  Mexico 
on  the  south,  and  the  Rocky  Mountains  on  the  west  and 
southwest ;  and  that  lying  between  the  Rocky  Mountains  and 
the  Pacific  Ocean.  It  will  be  seen  at  a  glance  that  the  phys- 
ical features  of  North  America  differ  wholly  from  those  of 
Europe  in  one  respect,  viz;  the  great  mountain  ranges  of 
North  America  cut  the  territory  always  longitudinally.  Con- 
sequently we  are  referred  to  climatic  differences  here,  in  highe" 
degree  than  in  Europe,  for  national  boundaries.  Taking  into 
account  "these  climatic  differences,  we  can  enumerate  six  tol 
erably  well  defined  territorial  unities.  The  first  is  the  tabic  > 
land  lying  between  the  Gulf  of  Mexico  and  the  Caribbean  Sea 
on  the  east  and  the  Pacific  Ocean  on  the  west,  stretching 
obliquely  across  the  parallels  of  longitude  from  82°  to  1 1 5° 


12 


The  Nation. 


west,  and  the  parallels  of  latitude  from  io°  to  300  north,* 
and  measuring  in  superficial  area  about  875,000  square 
miles.2  The  second  is  the  territory  lying  between  the 
Appalachian  range  and  the  Atlantic  coast,  stretching  ob- 
liquely across  the  longitudinal  lines  from  60°  to  850  west,  and 
the  lines  of  latitude  from  250  to  about  500  north,3  and  measur 
ing  in  superficial  area  about  400,000  square  miles.4  The  third 
is  the  region  lying  between  the  30th  and  50th  degrees  of 
north  latitude,  bounded  by  the  Rocky  Mountains  on  the 
east  and  the  Pacific  Ocean  on  the  west,  stretching  obliquely 
across  longitudes  no°  to  1250  west,5  and  having  a  superficial 
area  of  about  865,000  square  miles.6  The  fourth  is  the 
continuation  of  the  same  region  toward  the  north,  between 
the  same  eastern  and  western  boundaries,  and  stretching  ob- 
liquely across  the  lines  of  longitude  from  1  io°  to  1650  west,  and 
the  lines  of  latitude  from  50°  to  700  north.7  The  area  of  this 
territory  must  be  something  like  800,000  square  miles.8  The 
fifth  is  the  vast  basin  of  the  Mississippi  and  Missouri  rivers, 
bounded  by  the  Appalachian  Mountains  on  the  east  ;  by  the 
Rocky  Mountains  on  the  west ;  by  the  Gulf  of  Mexico  on  the 
south  ;  and  on  the  north  by  the  Great  Lakes,  and,  west  of 
these,  by  the  water-shed  between  the  Mississippi  and  Missouri 
rivers  and  the  Saskatchewan,  Lake  Winnipeg,  and  Lake  Su- 
perior. It  lies,  for  the  most  part,  between  latitudes  290  and 
480  north,  and  between  longitudes  750  to  no°  west  at  the 
northern  boundary  ;  at  the  south  the  territory  narrows,  lying 
between   850  and   ioo°  west.9      It  has   a  superficial  area  of 

1  Encyclopaedia  Britannica,  Vol.  I,  Plate  10. 

2  Statesman's  Yearbook,  1889,  pp.  620,  628,  637,  645,  65 1,  669. 
8  Encyclopaedia  Britannica,  Vol.  I,  Plate  10. 

4  Statesman's  Yearbook,  1889,  pp.  593,  691. 
6  Encyclopaedia  Britannica,  Vol.  I,  Plate  10. 
8  Statesman's  Yearbook,  1889,  pp.  593,  691. 
'  Encyclopaedia  Britannica,  Vol.  I,  p.  10. 

8  Statesman's  Yearbook,  1889,  pp.  593,  691. 

9  Encyclopaedia  Britannica,  Vol.  I,  Plate  10. 


Distribution  of  Nations  and  Nationalities.       13 

nearly  1,750,000  square  miles.1  The  sixth  and  last  territorial 
unity  is  the  almost  immeasurable  region  lying  north  of  the 
fifth  division  and  east  of  the  Rocky  Mountains,  between  lati- 
tudes 490  and  8o°  north,  and  longitudes  6o°  and  1150  to  1400 
west.  Its  area  can  be  stated  only  approximately  at  about 
3,000,000  square  miles.2 

II. 

Let  us  next  examine  if  the  ethnographical  lines  coincide 
with  the  boundaries  of  these  geographical  unities.  Begin- 
ning with  Europe,  we  find  that  the  first  of  its  physical 
divisions  is  inhabited  by  three  ethnically  distinct  popula- 
tions, viz ;  Spaniards,  Portuguese,  and  Basques,  in  about  the 
proportion  of  19,000,000,  6,000,000  and  5oo,ooo.3  These 
three  populations  occupy  different  parts  of  this  territorial 
division.  The  first  spreads  over  the  main  body  of  it.  The 
second  occupies  a  narrow  strip  upon  the  western  coast,  and 
the  third  inhabits  a  small  area  upon  the  northern  boundary 
about  midway  between  its  extremities.  There  are,  moreover, 
about  70,000  Morescoes  and  10,000  Jews  scattered  over  the 
southern  half  of  this  territory,  and  some  55,000  gypsies  rove 
through  it.  In  the  west  some  3000  or  4000  negroes  are  to  be 
found.  Of  the  three  chief  varieties,  only  the  third  is  an  original 
race.  The  first  is  an  amalgamation  of  Iberians,  Celts,  Romans, 
Goths,  Alani,  Suevi,  Vandals,  Moors,  Arabs  and  Jews  ; 4  and  the 
second  of  Romans,  Suevi  and  Moors,  influenced  later  by  Jewish 
and  French  elements.5 

We  find  the  second  of  our  geographic  unities  inhabited  by 
two  well  defined  ethnical  varieties,  viz ;  the  English  and  the 

1  Statesman's  Yearbook,  1889,  p.  691  ff. 

2  Statesman's  Yearbook,  1889,  p.  593;  Encyclopaedia  Britannica,  Vol.  I, 
Plate  10. 

3  Spruner-Menke,  Handatlas  fur  die  Geschichte,  No.  13.  Statesman's  Year- 
book, 1910,  pp.  1 109,  1219. 

*  Andree,  Geographisches  Handbuch,  S.  644. 
6  Ibid.  S.  637. 


14  The  Nation. 

Celts.  Here  again  these  different  populations  occupy  differ- 
ent parts  of  this  territorial  division.  Most  of  the  western 
island  and  the  extreme  western  and  extreme  northern  parts 
of  the  eastern  island  are  inhabited  chiefly  by  Celts.  The 
English  chiefly  occupy  all  the  rest ;  but  each  variety  is  scat- 
tered in  greater  or  less  degree  over  the  territory  principally 
occupied  by  the  other.  Of  these  two  only  the  Celtic  is  an 
original  race.  The  English  nationality  is  Teutonic,  with  a 
slight  Celtic  and  a  very  slight  Roman  admixture.  The  Eng- 
lish manifests  the  inclination  and  the  power  to  absorb  more 
and  more  the  Celtic  element.  At  present  they  stand  in  the 
numerical  proportion  of  about  40,000,000  English  to  about 
5,000,000  Celts.1  I  reckon  the  number  of  Celts  at  a  design- 
edly generous  figure. 

In  the  geographical  division  which  I  have  numbered  as 
third  are  found  no  less  than  six  ethnical  varieties  of  popu- 
lation inhabiting  different  parts  of  this  territory,  viz  ;  French, 
Walloons,  Italians,  Teutons,  Celts  and  Basques2  —  to  say 
nothing  of  the  unamalgamated  elements  scattered  through 
the  whole.  The  French  occupy  by  far  the  greater  part 
of  this  division.  The  other  varieties  inhabit  districts 
lying  close  upon  the  boundaries  :  the  Basques  are  along 
the  Pyrenees  ;  the  Celts  occupy  the  outer  half  of  the 
western  peninsula ;  the  Walloons  and  Teutons  are  upon 
the  northeast,  and  the  Italians  upon  the  extreme  south- 
east. In  numerical  strength  we  may  reckon  the  French  in 
round  numbers  at  about  37,700,000,  the  Walloons  at  about 
5,500,000,  the  Teutons  at  about  3,800,000,  the  Celts  at  about 
1,250,000,  the  Basques  at  about  150,000,  and  the  Italians  at 
about  i25,ooo.3  Of  these,  the  Basques,  Celts  and  Teutons 
(Flemings)  may  be  regarded  as  probably  simple  races ;  the 
rest  are  amalgamated  populations.     The  French  blood  con- 

1  Statesman's  Yearbook,  1910,  pp.  11  ff. 

2  Spruner-Menke,  Handatlas,  No.  13. 

3  Statesman's  Yearbook,  1910,  pp.  632,  749. 


Distribution  of  Nations  and  Nationalities.        15 

tains  Iberian,  Celtic,  Roman  and  Teutonic  (Frankish,  Bur- 
gundian  and  Norman)  elements.1  The  Walloons  are  a  mix- 
ture of  Celt,  Teuton  and  Roman,  and  the  Italians  in  this 
division  have  the  same  ethnical  composition. 

In  our  fourth  division  of  the  European  territory  we  find 
the  lines  of  physical  geography  and  ethnography  most  nearly 
coincident.  The  population  is  so  nearly  pure  Italian  that 
the  variation  is  not  worth  the  mention  in  a  treatise  upon 
political  science.  The  Italian  is  an  amalgamated  population, 
and  it  is  of  great  importance  that  we  observe  the  fact  that,  in 
the  different  parts  of  this  territory,  different  elements  enter 
into  the  compound,  and  the  same  elements  in  far  different 
degree.  In  the  north,  Celt,  Roman  and  Teuton  make  it  up, 
with  the  latter  as  the  preponderating  component ;  in  the 
middle,  we  have  the  same  elements,  but  with  the  Roman  in 
the  ascendency ;  while  in  the  south,  Greek  and  Saracen,  and 
later,  French  and  Spaniard,  have  contributed  to  the  ethnic 
constitution  of  the  population.  The  numerical  strength  of 
the  entire  Italian  nation  is  now  about  35,ooo,ooo.2 

On  the  other  hand,  great  ethnical  variety  is  to  be  found 
in  the  fifth  division,  the  eastern  peninsula  of  Europe.  The 
entire  extremity  of  the  peninsula,  the  eastern  half  of  it  and 
the  coasts  of  the  yEgean  Sea,  of  the  Sea  of  Marmora  and  of 
the  Black  Sea,  are  inhabited  by  an  exclusively  or  a  mainly 
Greek  population.  The  western  half  of  the  peninsula, 
excluding  the  extremity  but  reaching  up  to  the  northern 
boundary  of  the  division,  is  occupied  by  the  Albanians. 
The  middle  lands  above  the  extremity  of  the  peninsula 
are  inhabited  by  South  Slavs  ;  and  between  these  and  the 
Greeks  upon  the  coasts  of  the  Sea  of  Marmora  and  the 
Black  Sea,  a  Turkish  population  resides.  The  numerical 
strength  of  these  ethnically  different  populations  may  be 
roughly  estimated    at    3,800,000   Greeks,    1,800,000  Turks, 

1  Andree,  Geographisches  Handbuch,  S.  684. 

2  Statesman's  Yearbook,  1910,  pp.  947-8. 


1 6  The  Natio7i. 

1,700,000  Slavs  and  2,000,000  Albanians.1  Of  these  four 
populations,  only  two  can  be  regarded  as  simple  and  original 
races,  viz;  the  Turks  and  the  Slavs.  The  Greeks  are  a 
mixture  of  Hellenic,  Slavic  and  Turkish  elements,  with  the 
former  greatly  preponderant ;  and  the  Albanians  are  probably 
compounded  from  Greek,  Epirotic  and  Illyrian  elements. 
Even  the  Slavs  in  this  division  have  a  little  Teutonic  ad- 
mixture. 

Our  sixth  geographic  division  shows  again  a  greater  eth- 
nical harmony  in  the  population.  The  great  mass  are  Teu- 
tons, of  the  northern  or  Scandinavian  branch,  numbering 
about  8,500,000;  but  a  wedge-shaped  bit  of  territory  reach- 
ing from  the  neck  almost  to  the  crotch  of  the  peninsula, 
inhabited  by  about  25,000  Finns  and  Lapps,  separates  the 
Teutons,  as  to  their  places  of  abode,  into  an  eastern  and  a 
western  branch.2  The  influence  of  this  separation  upon  the 
politics  of  the  peninsula  has  been  very  great,  as  we  shall  see 
further  on. 

In  the  seventh  division,  on  the  other  hand,  the  lines  of 
geography  and  ethnography  again  separate.  The  great  mass 
of  the  population  are,  indeed,  Teutons,  of  the  Germanic  branch, 
to  the  number  of  nearly  70,000,000  ;  but  upon  the  southwest 
boundary  exists  a  French-Walloonish  element,  to  the  number 
of  about  4,000,000 ;  and  a  very  large  block  of  this  territory, 
upon  the  east,  is  occupied  by  Slavs,  to  the  number  of  more 
than  12,000,000  souls.  Moreover,  the  3,000,000  Teutons  in- 
habiting the  peninsula  on  the  north  of  this  division  must 
be  reckoned  with  the  Scandinavian  branch  of  the  Teutonic 
stock.3     The  dominant  race  in  this  division  is  also  scattered 


1  Spruner-Menke,  Handatlas,  No.  13  ;   Statesman's  Yearbook,  1904,  pp.  789, 
1 195  ;  Andree,  Geographisches  Handbuch,  S.  790. 

2  Spruner-Menke,  Handatlas,  No.  13;  Statesman's  Yearbook,  1910,  pp.  1062, 

1234. 

3  Spruner-Menke,  Handatlas,  No.  13  ;   Statesman's  Yearbook,  1904,  pp.  419, 
557,  578,  664,  913,  1030,  1 177  ;  and  1910,  pp.  725,  825. 


Distribution  of  Nations  and  Nationalities.       1 7 

throughout  those  parts  chiefly  inhabited   by  the  other  eth- 
nical  elements ;  and  upon  the  northeast,  Slavic  components 
are  to  be  found  in  the  parts  occupied  chiefly  by  the  Germans. 
The  eighth  geographic  division  presents  us  with  a  popula- 
tion of  decided  ethnical  variety.     Some  of  the  other  divisions, 
indeed,  offer  as  great  variety  in  this  respect,  but  in  none  are 
the   different  elements  so  evenly  balanced  numerically  as  in 
this.      In  the  west  and  northwest  are  the  3,000,000  Teutons; 
in  the   north,  south  and  southeast,  the   13,000,000  Slavs;  in 
the    centre    the    15,000,000    Hungarians;    in    the    east    the 
2,500,000  Rumans.1     If  we  connect  the  valley  of  the  Danube 
from  the  Iron  Gate  to  its  mouth  with  this  division,  then  we 
have    3,000,000    more    Rumans,    1,500,000    more    Slavs    and 
about  550,000  Turks;  but  from  a  geographic  standpoint,  as 
I  have  before  indicated,  I  think  it  questionable  if  we  should 
do  this.      Of  these  populations,  the  Hungarians  and  Rumans 
are  mixed  races.     The   predominant  simple  element  in  the 
Hungarian  compound  is  the   Magyar,  originally  a  Turanian 
branch.     The  other  elements  are  Teuton,  Slav  and  Ruman. 
In    the    Rumanic    compound    the    predominant    element    is 
Roman.     The  Rumans  are  the  descendants  of   the  Roman 
colony  planted  by  Trajan  during  the.  second  century  in  the 
province  of   Dacia.     They  have  become  somewhat  modified 
in  their  pure  Romanism  by  contact  and  amalgamation  with 
Slavic  elements. 

The  ninth  geographic  division  of  Europe  presents  the 
greatest  ethnical  variety  in  its  population,  but  contains  a 
decidedly  dominant  race.  It  is  calculated  that  about  one 
hundred  and  twenty  different  race-branches  inhabit  this  terri- 
tory, speaking  at  least  forty  different  languages  or  linguistic 
dialects.2  I  shall  enumerate  only  the  different  races,  and  not 
descend  into  the  details    of   tribes   and  idioms.     First,  the 


1  Spruner-Menke,  Handatlas,  No.  13;  Statesman's  Yearbook,  1904,  pp.  419, 
664,  1013;  and  1910,  pp.  596,  612. 

2  Andree,  Geographisches  Handbuch,  S.  764. 


1 8  The  Nation. 

great  Slavic  race,  numbering  about  110,000,000  souls,  occu- 
pies the  centre  and  reaches  out  nearly  to  the  circumference 
upon  all  sides.  On  the  western  limits  are  about  3,000,000 
Teutons,  3,000,000  Jews,  3,500,000  Lithuanians  and  1,000,- 
000  Tschuds ;  on  the  northern,  about  2,500,000  Finns; 
on  the  eastern,  about  1,500,000  Finns,  2,000,000  Tartars 
and  100,000  Kalmucks  ;  and  on  the  southern,  about  2,000,000 
Caucasians,  about  2,000,000  Jews,  about  1,000,000  Tartars 
and  about  700,000  Rumans.1  If  we  connect  with  this  divi- 
sion the  valley  of  the  Danube  below  the  Iron  Gate,  as  appears 
to  me  more  scientific  geographically,  then  we  must  add  to  the 
population  about  3,000,000  more  Rumans,  1,400,000  more 
Slavs  and  550,000  Turks.2  It  should  be  remarked  that  the 
Slavic  element  in  the  northern  part  of  this  division  is  by  no 
means  so  pure  as  in  the  middle  and  southern  parts.  In  the 
north  it  is  -considerably  amalgamated  with  both  the  Germanic 
and  Scandinavian  branches  of  the  Teutonic  race,  and  also 
with  Finnish  elements.  This  ethnical  fact  has  had  immense 
influence  upon  the  political  conditions  within  this  territory, 
as  will  become  apparent  in  our  further  considerations. 

We  come  now  to  the  continent  of  North  America.  For 
the  purposes  of  this  work  it  will  be  necessary  to  analyze  only 
that  population  which  inhabits  the  territory  lying  between 
the  thirtieth  and  fiftieth  degrees  of  north  latitude  and 
stretching  from  sea  to  sea.  It  will  be  seen  by  referring  to 
pages  11  and  12  that  this  territory  comprehends  the  second, 
third  and  fifth  geographic  unities.  In  ethnic  character  there 
is  no  very  sharp  distinction  between  the  populations  occupy- 
ing these  different  divisions.  In  all  of  them  an  amalgamated 
Teutonic  race  is  the  dominant  factor.  But  there  are  many 
qualifications  to  be  noted  in  regard  to  this  progressing  amal- 
gamation and  domination.  In  the  first  place,  the  different 
branches  of  the  Teutonic  race  are  not  yet  fully  amalgamated. 

1  Statesman's  Yearbook,  1904,  pp.  1030  ff. ;  and  1910,  pp.  1 1 48  £f . 

2  Ibid.  1910,  pp.  1013,  1216. 


Distribidion  of  Nations  and  Natio7iaUties.        19 

The  Anglo-Americans,  Germans  and  Scandinavians  do  not 
yet  mingle  their  blood  completely.  They  do  not,  however,  in- 
habit separate  portions  of  either  of  these  territorial  divisions, 
and  the  Anglo-American  element  is  still  so  greatly  in  numeri- 
cal ascendency  that  no  ethnical  conflict  need  be  feared  be- 
tween them.  There  is  little  doubt  but  that  the  Anglo-Ameri- 
can element  will  absorb  the  other  Teutonic  elements.  It  has 
already,  however,  suffered  some  modification  thereby,  and 
will  undoubtedly  suffer  more.  In  the  second  place,  many 
other  ethnical  varieties  are  strongly  represented  in  all  three 
of  these  divisions.  The  first  in  the  order  of  strength  is  un- 
doubtedly the  negro  race,  which  must  now  number  between 
10,000,000  and  12,000,000  of  souls,  seven-eighths  of  whom 
reside  in  the  territory  of  our  second  and  fifth  divisions 
below  the  thirty-seventh  parallel  of  north  latitude,  and  make 
up  about  one-third  of  its  entire  population.  They  do  not 
intermarry  with  the  other  elements  of  the  population  to 
any  degree  worth  mention.  There  is,  therefore,  little  pros- 
pect of  physical  amalgamation  between  them.  Next  in  order 
of  numerical  strength  is  the  Celtic  race,  not  inhabiting  any 
distinctly  separate  portion  of  territory  but  scattered  for  the 
most  part  through  the  cities  and  larger  towns  of  the  division 
east  of  the  Appalachian  range.  There  are  at  least  2,500,000 
of  foreign-born  Celts  within  this  territory,  to  say  nothing  of 
those  born  therein  of  pure  Celtic  parentage.  The  Celt  and 
the  Teuton,  again,  do  not  amalgamate  very  readily,  though  of 
course  far  more  readily  than  the  negro  and  the  white  races. 
There  are,  moreover,  about  125,000  Mongols  throughout  these 
three  divisions,  nineteen-twentieths  of  them  in  the  territory 
of  the  third  division.  The  white  races  show  about  as  little 
tendency  to  amalgamate  with  them  as  with  the  negro  race. 
There  are  also  about  60,000  Indians  scattered  through  the 
three  divisions  as  regular  elements  of  the  population,  and 
about  240,000  as  exceptional  elements,  having  distinct  tribal 
organizations.       These  latter  are  to  be  found  in   the  third 


20  The  Nation. 

division  and  the  western  part  of  the  fifth  division  of  this 
territory.  Finally,  there  is  a  considerable  Romanic  element 
in  the  southern  part  of  all  three  of  these  divisions.  It  is  not, 
however,  foreign-born.  It  is  the  indigenous  progeny  of  the 
original  Spanish  and  French  settlers  in  these  parts.  It  amal- 
gamates easily  with  the  Teutonic  element.  Its  influence, 
however,  in  the  development  of  opinion  and  institutions  is 
unmistakable. 

In  these  three  divisions  there  must  be  nearly  93,000,000 
inhabitants.  If  now  we  should  say  that  all  white  persons 
resident  within  this  territory  before  1820,  and  their  pure 
descendants,  are  Americans,  we  could  hardly  figure  more 
than  40,000,000  of  these  at  present  (191 1)  from  any  known 
percentages  of  excess  of  births  over  deaths.1  We  know,  on 
the  other  hand,  that  about  25,000,000  white  persons  have 
immigrated  into  this  territory  since  1820.  The  other  40,000,- 
000,  then,  of  the  present  white  population  must  be  the  living 
remainder  of  these  25,000,000,  together  with  their  pure  de- 
scendants and  the  issue  of  marriages  contracted  between 
these  new-comers  and  those  whom  I  have  termed  Americans. 
We  know  also  that  the  present  foreign-born  population  resi- 
dent within  this  territory  numbers  between  9,000,000  and 
10,000,000  souls,  mostly  Teutons  and  Celts.  About  one- 
half  are  Teutons,  and  about  one-third  are  Celts.  This  has 
been  about  the  proportion  throughout  this  whole  period  of 
immigration.  It  will  thus  be  seen  that  the  ethnic  character 
of  the  population  of  this  territory  is  very  cosmopolitan.  It 
is,  as  to  the  greater  part  of  it,  a  compound  of  many  elements, 
mostly  congenial  and  not  difficult  of  amalgamation,  having 
for  its  base  the  English  branch  of  the  Teutonic  race ;  but  it 
is  conglomerated,  so  to  speak,  with  other  elements,  numeri- 
cally quite  strong,  with  which  it  shows  no  tendency,  or  little 
tendency,    to   amalgamate.     The   influence   of   this   ethnical 

1  Richmond  M.  Smith,  Emigration  and  Immigration,  p.  60. 


Distribution  of  Nations  and  Nationalities.       2 1 

character  upon  the  political  and  legal  civilization  of  this 
population  has  been  and  is  still  very  great,  as  we  shall  see 
again  and  again  in  our  further  considerations. 

III. 

Let  us  now  examine  the  political  divisions  of  Europe 
and  North  America,  and  see  how  nearly  they  coincide  with 
these  divisions  of  physical  geography,  on  the  one  side,  and  of 
ethnography,  on  the  other.  Where  the  three  exactly  corre- 
spond, there  we  have  a  completely  national  state,  the  strong- 
est and  most  perfect  form  of  modern  political  organization. 
In  the  degree  that  they  diverge  from  this  relation,  they 
depart  from  this  condition  of  strength  and  perfection.  Al- 
most every  question  concerning  the  governmental  system 
and  organization  of  a  state  springs  out  of  these  relations.  A 
clear  and  minute  understanding  in  regard  to  them  is  there- 
fore absolutely  necessary  to  the  student  of  political  science 
and  constitutional  law. 

The  first  geographic  division  which  we  have  made  of  the 
European  territory  is  occupied  by  two  states,  Spain  and  Por- 
tugal. The  latter  occupies  a  strip  about  one  hundred  miles 
in  breadth  stretching  along  the  Atlantic  coast  from  the 
southern  extremity  to  the  mouth  of  the  river  Minho  and 
measuring  about  33,000  square  miles.  The  part  occupied  by 
Spain  measures  about  198,000  square  miles.1  There  is  no 
natural  geographic  boundary  between  the  two  states.  On 
the  other  hand,  the  ethnographic  lines  are  tolerably  distinct, 
and  correspond  with  the  lines  of  political  geography.  The 
Spanish  and  Portuguese  nations  are,  however,  so  nearly  akin 
that  ethnic  considerations  do  not  seem  to  demand  the  com- 
plete political  separation  of  the  two  countries.  The  ethnic 
difference  justifies  nothing  more  than  a  federal  organization 
of  government;   and  when  the  absence  of   any  geographic 

1  Statesman's  Yearbook,  1889,  pp.  395,  477. 


22  The  Nation. 

boundary  is  taken  into  account,  it  seems  that  a  single  state 
with  a  federal  system  of  government  would  best  satisfy  all 
the  conditions.  It  must  not  be  overlooked  in  this  connec- 
tion that  the  ethnographic  unity  of  Spain  suffers  a  slight 
break  in  the  northern  part  of  its  territory  by  the  existence 
of  the  nation  of  Basques.  These,  however,  number  only 
about  500,000  souls,  while  the  population  of  Portugal  is  about 
6,000,000,  and  that  of  Spain  about  20,000,000. l 

In  our  second  geographic  division  the  lines  of  physical  and 
political  geography  may  be  said  to  coincide,  although  the  geo- 
graphic coherence  between  England,  Scotland  and  Ireland 
is  not  perfect.  This  imperfection  is  not  sufficient  to  amount 
to  division,  and  yet  it  is  sufficient  to  amount  to  distinction. 
The  superficial  area  of  the  kingdom  is  120,832  square  miles. 
On  the  other  hand,  there  are  two  nationalities  in  the  king- 
dom of  Great  Britain,  viz  ;  the  English  and  the  Celtic,  occu- 
pying tolerably  distinct  parts  of  the  territory  of  the  state 
and  standing  in  the  numerical  relation  of  about  40,000,000 
to  5,ooo,ooo.2  Some  of  the  knottiest  questions  of  British 
politics  have  arisen  from  this  relation. 

The  third  geographic  division  of  Europe  is  occupied  by 
two  states,  viz ;  France  and  Belgium,  and  by  a  portion  of 
Holland,  in  the  proportion  of  204,092  square  miles  by  France, 
IT>373  by  Belgium,  and  the  remainder,  about  4,600,  by  Hol- 
land.3 Between  these  states,  therefore,  the  lines  of  physical 
geography  fail.  Neither  do  the  ethnographic  lines  coincide 
exactly  with  those  of  political  geography.  The  French 
nationality  is  predominant  south  and  southwest  of  Brussels, 
while  to  the  north,  northwest  and  northeast  of  Brussels 
the  German  nationality  predominates  in  an  ever-increasing 
degree  of  purity  as  we  advance  in  these  directions.  On  the 
other  hand,  the  French  state  includes  in  its  population  a 
Walloonish  element  along  the  eastern  border,  some  1,250,000 

1  Statesman's  Yearbook,  1910,  pp.  1109,  1219. 

2  Ibid.  pp.  1 1  ff.,  27.  3  Ibid.  pp.  465,  580,  913. 


Distribution  of  Nations  and  Nationalities.       23 

Celts  in  the  northwestern  peninsula,  about  1 1  5,000  Basques 
on  the  spurs  and  in  the  northern  valleys  of  the  Pyrenees  and 
about  125,000  Italians  in  the  southeast  corner.  We  may 
call  its  population  about  40,000,000. x  The  population  of  the 
Belgian  state  may  be  reckoned  at  about  8,000,000  souls,2 
one  half  French,  and  the  other  half  German,  —  unless,  in- 
deed, we  call  the  whole  population  Walloon ish,  and  say  simply 
that  the  Germanic  element  predominates  on  the  one  side,  and 
the  French  upon  the  other. 

It  is  in  our  fourth  geographic  division  that  the  lines  of 
political  geography  are  most  nearly  coincident  with  those  of 
natural  physical  division  on  the  one  hand  and  of  ethnography 
on  the  other.  It  is  only  on  the  north  that  the  Italian  state 
is  not  quite  coincident  with  geographic  and  ethnographic 
Italy.  The  latter  reaches  to  the  crest  of  the  Alps,  while  the 
former  stops  in  some  points  at  the  foothills ;  as,  for  instance, 
in  the  district  about  Lugano.  I  would  roughly  estimate  that 
Italy  occupies  114,500  square  miles  of  the  115,000  in  this 
fourth  division,  and  that  there  are  about  600,000  members 
of  the  Italian  nation  subject  to  France,  Switzerland  and 
Austria. 

Regarded  wholly  from  the  standpoint  of  physical  geog- 
raphy and  ethnography,  it  appears  somewhat  strange  that 
an  Italian  national  state  has  been  so  long  in  coming  to  its 
development.  Reasons  of  ecclesiastical  and  external  politics 
must  be  looked  to  for  the  explanation. 

The  fifth  division  of  the  European  territory  is  occupied 
by  two  states,  viz  ;  Greece  and  Turkey  in  Europe.  Greece 
covers  25,000  square  miles  and  Turkey  about  75,000.  It 
must  also  be  remembered  that  about  50,000  square  miles  of 
the  territory  in  the  eighth  physical  division  belong  nominally 
to  Turkey.3  The  line  of  physical  geography  between  Greece 
and  Turkey  is  therefore  wanting.     Neither  do  the  lines  of 

1  Statesman's  Yearbook,  1910,  p.  749. 

2  Ibid.  p.  632.  3  Statesman's  Yearbook,  1904,  pp.  789,  1195. 


24  The  Nation. 

ethnography  and  those  of  political  geography  coincide.  The 
Greek  state  does  not  include  the  whole  of  the  Greek  nation, 
but  it  does  include  a  considerable  Albanian  population  in  the 
western  half  of  its  territory  north  of  the  Morea.  The  whole 
population  of  Greece  is  about  3,000,00c).1  The  Albanian 
population  on  the  northwest  probably  numbers  175,000  souls. 
On  the  other  hand,  the  Turkish  state  in  Europe  contains  part 
of  the  Greek  nation,  part  of  the  South  Slavic  nation,  and 
part  of  the  Albanian  nation  ;  the  Greeks  in  the  territory  on 
the  east  and  south,  the  Slavs  in  the  middle,  the  Albanians 
in  the  west,  and  the  Turks  thrown  in  between  the  Greeks  and 
the  Slavs.  The  proportion  is,  in  the  rough,  1,250,000  Greeks 
to  1,700,000  Slavs,  1,500,000  Turks,  and  1,500,000  Albanians.2 
Moreover,  the  Turkish  state  in  Europe  maintains  a  nominal 
suzerainty  over  a  territory  and  population  north  of  the  natu- 
ral boundary  of  this  geographic  division.  This  population  is 
for  the  most  part  Slavic,  and  numbers  nearly  4,000,000  of 
souls.3  It  needs  no  argument  to  show  that  this  state  is  in 
a  very  precarious  condition  by  reason  of  its  ethnical  status, 
and  that  its  political  dissolution  is  only  a  question  of  a  little 
time. 

In  our  sixth  division  exist  now  two  independent  states.  The 
kingdoms  of  Sweden  and  Norway  are  separated  from  other  states 
by  broad  bodies  of  water  on  all  sides  except  across  the  neck  of 
the  peninsula,  where  they  are  separated  from  Russia,  for  the 
most  part,  only  by  the  insignificant  streams  of  the  Tornea  and 
the  Tana.  The  superficial  area  of  the  two  kingdoms  is  297,005 
square  miles,  of  which  172,876  lie  in  Sweden  and  124,129  in 
Norway.4  The  population  of  these  states  is  almost  exclusively 
North  Teutonic  or  Scandinavian  ;  but  about  25,000  Finns  and 
Lapps  occupy  a  broad  strip  of  this  area,  extending  from  the 
neck  to  the  crotch  of  the  peninsula,  and  separating  the  Teutonic 

1  Statesman's  Yearbook,  1910,  p.  920. 

2  Ibid.  1904,  p.  1 195;  Andree,  Geographisches  Handbuch,  S.  790. 
8  Statesman's  Yearbook,  1904,  p.  1195.  4  Ibid.  pp.  1142,  1157. 


Distribution  of  Nations  and  Nationalities.       25 

population  into  an  east  and  a  west  branch.  So  influential  has 
this  condition  been  in  the  political  development  of  this  people 
as  finally  to  cause  the  separation  of  these  states,  or  at  least  to 
aid  in  causing  it.  Moreover,  not  all  the  northern  branch  of 
the  continental  Teutons  are  resident  within  the  kingdoms  of 
Sweden  and  Norway.  The  Danes  must,  I  think,  be  classed  ethno- 
logically  with  the  Swedes  and  Norwegians.  The  population 
of  Sweden  is  now  6,000,000  souls  and  that  of  Norway  nearly 
3,000,000. x 

In  our  seventh  division  the  lines  both  of  political  geog- 
raphy and  of  ethnography  diverge  from  that  of  physical 
geography.  The  territory  of  the  German  Empire,  measuring 
211,135  square  miles,  covers  the  most  of  it ;  but  the  states  of 
Denmark,  Luxemburg  and  Switzerland,  about  three-fourths  of 
Holland,  about  one-fourth  of  the  Austrian  Empire  and  some 
15,000  or  20,000  square  miles  of  Russian  territory  lie  within 
it.2  On  the  other  hand,  a  part  of  the  German  Empire  lies  out- 
side of  this  division,  viz;  East  Prussia,  i.e.  Prussia  beyond  the 
Vistula,  some  15,000  square  miles  in  area.  The  ethnographic 
and  politico-geographic  lines  diverge  almost  as  widely.  The 
German  empire  fails  on  the  northwest,  south  and  south- 
east to  comprehend  the  entire  German  nation  ;  while  on  the 
east  and  northeast  it  includes  a  considerable  Slavic  popula- 
tion. There  are  thus  no  natural  boundaries  between  the 
German  Empire  and  Denmark,  Holland,  Switzerland,  Austria 
and  Russia.  The  German  Empire  has  now  a  population  of 
nearly  70,000,000  of  souls.  Of  these  about  4,000,000  are  Slavs, 
about  4,000,000  are  Walloons  and  French,  about  160,000  are 
Lithuanians,  and  about  150,000  are  Scandinavian  Teutons. 
About  60,000,000  therefore  are  Germans.      Denmark  has  a 


1  Statesman's  Yearbook,  1910,  pp.  1062,  1234. 

2  Denmark  has  an  area  of  14,124  square  miles;  Luxemburg,  of  998;  Holland, 
12,648,  about  one-fourth  of  which  lies  in  our  third  physical  division  ;  Switzerland, 
15,892,  about  500  square  miles  of  which  lies  in  our  fourth  physical  division. 
Statesman's  Yearbook,  1889,  pp.  23,  58,  117,  377,  378,  439,521. 


26  The  Nation. 

population  of  something  over  3,000,000,  nearly  all  North 
Teutonic.  That  part  of  Holland  included  within  this  division 
is  inhabited  by  about  4,000,000  persons,  nearly  all  Germans. 
That  part  of  Switzerland  included  in  this  division  has  a  popu- 
lation of  2,700,000,  four-fifths  German  and  the  other  one-fifth 
French.  Lastly,  about  16,000,000  of  the  subjects  of  the 
Austrian  Empire  and  about  3,500,000  of  the  subjects  of  the 
Russian  Empire  are  resident  within  this  seventh  division  of 
Europe's  physical  geography.1 

In  our  eighth  division  the  lines  of  political  geography  are 
again  greatly  divergent  from  those  of  physical  geography  and 
ethnography.  About  two-thirds  of  the  Austrian  Empire,  the 
whole  of  Servia,  and  those  Turkish  provinces  assigned  by  the 
Treaty  of  Berlin  of  1878  to  Austrian  administration,  and  lately 
incorporated  into  the  Austro-Hungarian  state,  viz;  Bosnia, 
Hertzegovina  and  Novi  Bazar,  lie  within  it.  If  we  should  make 
the  parallel  of  latitude  from  Kronstadt  in  the  eastern  angle  of 
the  Carpathians  to  the  Black  Sea  a  part  of  the  boundary  of  this 
division  instead  of  following  the  curves  of  the  Carpathians,  which 
I  hardly  think  so  correct  scientifically,  then  would  this  division 
contain  also  that  part  of  Rumania  originally  named  Wallachia 
and  Bulgaria.  On  the  other  hand,  about  one-third  of  the 
Austrian  Empire  lies  outside  of  this  division.  That  is  to  say, 
the  larger  part  of  the  Austrian  Empire  —  all  of  it  lying  to 
the  south  of  the  Noric  Alps  and  the  Carpathians  —  is  geo- 
graphically united  with  Servia,  Bosnia  and  Hertzegovina,  and 
geographically  separated  from  that  part  of  its  territory  lying 
to  the  north,  northwest  and  northeast  of  these  ranges.  The 
Austrian  Empire  has  an  area  of  240,942  square  miles,  of 
which  about  51,695  lie  in  our  seventh  physical  division,  and 
about  30,307  in  the  ninth.  Servia  has  an  area  of  18,750; 
Bosnia,  16,417;  Hertzegovina,  4,308  ;  Novi  Bazar,  3,522;  Bul- 
garia, 24,360;  Wallachia,  27,500.2      In  the  second  place,  the 

1  Statesman's  Yearbook,  1904,  pp.  419,  557,  664,  913,  1031,  1177;  and  1910, 
pp.  596-1148.  2  Ibid.,  1889,  pp.  23,  407,  463,  538,  546. 


Distribution  of  Nations  and  Nationalities.       27 

political  boundaries  within  this  division  do  not  correspond 
any  more  nearly  with  those  of  ethnography.  The  western 
and  northwestern  parts  of  the  Austrian  Empire  are  inhabited 
by  Germans,  to  the  number  of  about  10,000,000  souls;  the 
northern,  northeastern  and  southwestern  parts  by  Slavs,  to 
the  number  of  about  15,000,000  ;  the  eastern  by  Rumans  and 
Magyars,  to  the  number  of  about  5,000,000;  and  the  middle 
and  southern  parts  by  Hungarians,  to  the  number  of  about 
1 7,000,000.  About  3,000,000  or  4,000,000  more  of  these  dif- 
ferent nationalities  are  scattered  throughout  these  different 
parts  so  as  to  make  a  mixture  of  all  these  elements  in  greater 
or  less  degree  in  each  of  these  parts.  Servia,  Bosnia,  Hertze- 
govina  and  Novi  Bazar  are  pretty  thoroughly  South  Slavic. 
The  population  of  Servia  must  number  at  this  date  about 
2,500,000;  that  of  Bosnia,  Hertzegovina  and  Novi  Bazar 
about  the  same.  The  South  Slavic  race  also  makes  up 
about  two-thirds  of  the  population  of  Bulgaria ;  the  other 
one-third  is  for  the  most  part  Turkish.  Taken  together,  we 
may  count  them,  at  present,  for  about  2,000,000  souls.  Finally, 
the  state  of  Rumania  in  both  of  its  original  parts,  viz;  Mol- 
davia and  Wallachia,  is  mostly  national  Rumanian,  with  a 
Turkish  population  on  the  southeast  border.1 

Our  ninth  physical  division  is  covered  almost  entirely  by 
the  territory  of  the  great  Russian  Empire  in  Europe,  to  the 
vast  extent  of  2,095,504  square  miles.  Only  about  15,000  or 
20,000  square  miles  of  this  immense  territory  lie  outside  of 
this  division,  viz;  a  strip  on  the  western  boundary,  which 
must  be  reckoned  in  the  seventh  division.  On  the  other 
hand,  I  think  the  state  of  Rumania,  about  48,000  square 
miles  in  area,  the  principality  of  Bulgaria,  24,360  square 
miles  in  area  and  about  15,000  square  miles  of  the  territory 
of  Prussia,  and  about  the  same  amount  of  Austrian  territory, 
should  fall  within  this  division.2  The  lines  of  political  geog- 
raphy and  ethnography  are  still  more  divergent.     Russia  in 

1  Statesman'sYearbook,  1904,  pp.  421, 438, 1013,1103;  Ibid.,  1 910,  pp.  596,612. 

2  Ibid.  1889,  pp.  1 17,  407,  440,  546. 


28  The  Nation. 

Europe  has  a  population  of  more  than  130,000,000  souls. 
About  110,000,000  or  more  of  these  belong  to  the  Slavic  race 
or  nation.  They  inhabit  the  centre  of  the  Empire,  and  reach 
nearly  to  the  circumference  on  all  sides;  but  on  the  western 
limit  there  are  about  3,000,000  Teutons,  3,000,000  Jews, 
2,500,000  Lithuanians  and  1,000,000  Tschuds;  on  the  north- 
ern about  2,000,000  Finns;  on  the  eastern  about  1,500,000 
Finns,  2,000,000  Tartars  and  100,000  Kalmucks  ;  and  on  the 
southern  about  2,000,000  Caucasians,  2,000,000  Jews,  1,000,- 
000  Tartars  and  700,000  Rumans.  The  population  of  Ru- 
mania is  almost  wholly  national  Ruman,  and  numbers  about 
7,000,000  souls  ;  that  of  Bulgaria  is  about  4,500,000  souls, 
of  whom  two-thirds  are  South  Slavs,  and  the  remainder  for 
the  most  part  Turks. 

Finally,  when  we  turn  to  North  America  again,  we  find  a 
very  different  set  of  relations  between  political  and  physical 
geography  and  ethnography  from  those  obtaining  in  Europe. 
In  the  first  place,  the  United  States  occupies  about  all  of  this 
territory  that  is  well  fitted  for  the  geographical  basis  of  a 
great  state.  Its  area,  excluding  Alaska,  is  about  3,000,000 
square  miles.  It  stretches  over  the  second,  third  and  fifth 
physical  division  of  the  continent,  ignoring  the  natural  sepa- 
ration of  its  domain  into  three  parts  by  the  Appalachian  and 
the  Rocky  Mountains,  and  recognizing  the  boundaries  of  cli- 
mate rather  than  those  of  mountain  ranges.  In  the  second 
place,  the  population  of  the  United  States,  numbering  some 
92,000,000  souls,  is  far  more  cosmopolitan  than  that  of  any 
European  state.  As  I  have  already  indicated  under  Div.  II 
of  this  chapter,  its  base  is  English  ;  but  it  has  become  amal- 
gamated in  more  or  less  degree  with  German  and  Celtic  ele- 
ments, so  that  of  the  92,000,000  hardly  more  than  40,000,000 
can  be  regarded  as  pure  American,  as  I  have  elsewhere 
shown.1     Moreover,  Romanic  elements  have  entered  into  the 

1  See  page  18. 


Distribution  of  Nations  and  ATationalities.       29 

amalgamation  in  some  degree,  —  in  the  extreme  southern 
parts  of  the  United  States  in  large  degree.  At  least  three- 
fourths  of  the  10,000,000  or  12,000,000  of  negroes  inhabit- 
ing the  United  States  reside  in  the  commonwealths  lying 
south  of  the  Ohio  and  east  of  the  Mississippi  rivers,  and 
make  up  about  one-third  of  the  population  of  this  section. 
As  I  have  already  remarked,  they  do  not  amalgamate  with 
the  white  races  ;  or  more  correctly,  the  white  races  do  not 
amalgamate  with  them.  They  seem  destined  to  maintain  a 
separate  race  existence.  On  the  other  hand,  the  9,000,000 
or  10,000,000  of  foreign-born  inhabitants  of  the  United  States 
—  in  large  majority  Germans  and  Celts  —  are  scattered,  for 
the  most  part,  over  that  part  of  the  territory  of  the  United 
States  lying  north  of  the  thirty-seventh  degree  of  north  lati- 
tude ;  and  while  they  do  not  amalgamate  as  freely  with  the 
Anglo-Americans  as  these  latter  do  among  themselves,  still 
there  are  no  such  insurmountable  impediments  in  the  way  of 
the  same  as  manifest  themselves  when  the  white  races  are 
brought  into  contact  with  negroes  and  Mongols.  Finally, 
there  are  a  few  Indians  and  Chinese,  hardly  to  the  number 
of  half  a  million,  resident  within  the  territory  of  the  United 
States.  Their  presence  would  scarcely  be  felt  except  for  the 
fact  that  about  240,000  of  the  Indians  inhabit  a  separate  part 
of  this  territory  and  live  under  tribal  organizations,  and  three- 
fourths  of  the  Chinese  reside  in  a  single  commonwealth,  viz; 
California. 


30  The  Nation. 


CHAPTER   III. 

NATIONAL    POLITICAL    CHARACTER. 

This  is  a  very  difficult  and,  in  some  cases,  a  very  puzzling 
subject.  Some  nations  manifest  apparently  contradictory 
traits  at  different  periods  of  their  development.  I  think  we 
should  take  this  fact  as  evidence  that  such  traits  should  be 
excluded  from  our  estimate  of  national  character.  Only  such 
traits  as  perdure  through  all  the  periods  of  a  nation's  life 
should  be  regarded  as  peculiar  to  that  nation.  If  we  adopt 
this  rule,  I  think  we  shall  be  delivered  from  much  confusion 
of  thought.1 

The  great  races  from  which  the  nations  of  modern  Europe 
and  North  America  have  sprung  are  the  Greek,  the  Latin, 
the  Celt,  the  Teuton  and  the  Slav.  I  shall  therefore  con- 
fine my  treatment  of  political  psychology  to  these  races. 
I  shall  not  trouble  my  readers  with  an  enumeration  of  the 
political  traits  ascribed  to  these  different  nations  by  the  long 
list  of  writers  upon  this  subject.  I  shall  simply  take  the 
peculiar  political  institution  which  each  of  these  races  has 
produced  and  to  which  it  has  clung,  as  expressive  of  its 
innermost  political  life  in  all  the  periods  of  its  development ; 
and  from  this  I  shall  attempt  to  lead  up  to  a  recognition  of 
the  political  ideals  peculiar  to  each  race.  It  seems  to  me 
that  in  this  manner  we  shall  gain  a  surer  foothold  and  shall 
be  less  likely  to  substitute  fancy  for  fact. 

1  Waitz,  Anthropologic  der  Naturvolker ;  Vollgraff,  Erster  Versuch  einer 
wissenschaftlichen  Begriindung,  sovvohl  der  allgemeinen  Ethnologie  durch  die 
Anthropologic  wie  auch  der  Stats-  und  Rechtsphilosophie  durch  die  Ethnologie 
oder  Nationalist  der  Volker. 


National  Political  Character.  31 

First.  The  Greeks  and  Slavs.  To  my  mind  the  political 
institution  in  which  the  political  life  of  the  Greeks  incorpo- 
rated and  still  incorporates  itself  is  the  community.  In  this 
the  Greek  and  the  Slav  agree,  and  for  this  reason  I  treat  of 
them  under  the  same  heading.  In  the  organization  of  the 
community,  the  narrowest  circle  of  political  life,  the  political 
genius  of  the  Greek  and  Slavonic  natures  has  been  chiefly 
occupied  and  almost  exhausted.1  According  to  their  political 
psychology  the  whole  power  of  the  state  must  be  in  the  com- 
munity ;  i.e.  the  sovereignty  must  be  in  the  community.  Any 
wider  organization  could  be  regarded  only  as  an  interstate 
league,  exercising  delegated  and  very  limited  powers,  while 
the  rights  of  individuals  as  against  the  community  could  have 
no  existence.  In  this  form  of  political  organization  the  way 
lies  open  for  a  development,  in  richest  variety,  of  other  qual- 
ities of  genius,  such  as  music,  poetry,  art,  eloquence,  philoso- 
phy and  religion,  provided  the  germs  of  the  same  exist  in  the 
psychologic  character  of  the  nation ;  but  the  race  that  clings 
to  this  form  of  political  organization  manifests  a  low  order 
of  political  genius.  Its  failings  must  quickly  reveal  them- 
selves in  political  history  in  three  general  directions,  viz; 
in  the  poverty  and  insecurity  of  individual  rights,  in  the 
inability  to  regulate  the  relations  between  different  com- 
munities, and  in  weakness  against  external  attack.  All 
three  of  these  failings  point  in  the  same  direction.  They 
make  it  absolutely  necessary  that  the  political  organization, 
in  highest  instance,  of  the  Greek  and  Slav  nations  should 
be  undertaken  by  a  foreign  political  power.  It  is  no  play  of 
chance  nor  contradiction  in  character  that  Greece  has  been 
obliged  to  receive  its  general  constitution  from  the  Roman, 

1  Laurent,  Etudes  sur  l'histoire  de  l'humanite,  Tome  II,  pp.  1-26;  Curtius, 
Griechische  Geschichte,  Bk.  I,  S.  1-32,  175;  Bluntschli,  Lehre  vom  modernen 
Stat,  Bd.  I,  S.  37,  40 ;  Leroy-Beaulieu,  L'Empire  des  Tsars  et  les  Russes ; 
Wallace,  Russia ;  Foulke,  Slav  or  Saxon,  p.  64.  Freeman,  Federal  Government, 
c.  2. 


32  The  Nation. 

and  then  the  Turk,  and  now  the  Teuton  ;  nor  that  the  Slavs 
are  subject  to  the  autocratic  government  of  the  Osmanli 
and  the  Teutonic  dynasties  of  Rumanoff  and  Hapsburg. 
This  is  the  natural  result  of  their  want  of  any  comprehen- 
sive political  genius,  and  of  the  exhaustion  of  their  political 
powers  of  production  in  the  creation  of  the  lowest  forms  of 
political  organization.  Whether  they  will  ever  become  edu- 
cated up  to  higher  degrees  of  political  capacity  or  are  destined 
permanently  to  work  upon  the  development  of  other  lines  of 
culture  than  the  political  is,  I  think,  still  a  question.  I  do 
not  believe  that  a  consciousness  of  the  political  principles 
which  we  call  modern  has  been  awakened  in  any  considerable 
number  of  the  Greeks  or  Slavs,  and  I  do  not  think  that  these 
few  more  enlightened  minds  are  aware  how  totally  unpolitical 
their  national  genius  is.  They  are  constantly  being  dis?p- 
pointed  by  the  want  of  support  from  the  masses  in  projects  or 
general  political  reform.  I  remember  that  some  eight  years  ago 
a  distinguished  professor  of  the  University  of  Moscow,  one  of 
the  best  lawyers  and  publicists  of  the  Slavic  race  in  Russia, 
said  to  me  that  he  expected  the  Russian  revolution  to  be  an 
accomplished  fact  before  his  return  to  Moscow,  which  was 
to  be  in  about  six  months  from  the  date  of  this  conversation. 
Time  has  shown  that  he  was  wofully  mistaken,  and  his  mis- 
take was  in  the  assumption  that  the  imperial  government 
appeared  as  unnatural  and  tyrannic  to  the  mass  of  the  Rus- 
sian subjects  as  to  himself.  I  do  not  suppose  there  is  an 
American  schoolboy  fifteen  years  of  age,  who  has  not  wept 
bitter  tears  over  the  fate  of  Poland,  and  who  does  not  think 
he  could  reform  the  government  of  Russia ;  and  I  have  no 
doubt  he  would  begin  by  dethroning  the  Czar,  abolishing 
the  army  and  disestablishing  the  Church  ;  and  I  am  sure 
that  the  practical  result  of  the  procedure  would  be  that  in 
less  than  twenty-five  years  there  would  be  little  left  of  the 
civilization  of  Russia  and  possibly  of  the  civilization  of 
Europe.     Let  the  Caesarism  of   Russia  be  made  as  honest 


National  Political  Character.  33 

and  benevolent  as  possible,  but  Caesarism  must  be  the  gen- 
eral system  of  its  political  organization  so  long  as  the  polit- 
ical psychology  of  the  Slav  is  what  it  is  and  what  it  has 
been.  Let  the  Danish  monarchy  in  Greece  educate  its  sub- 
jects politically  with  patience  and  probity,  but  the  Teutonic 
power  must  remain  there  if  Greece  would  be  preserved  in 
the  future  from  the  political  barbarism  of  her  past.  The 
same  is  true  in  regard  to  the  Slavs  of  Austria  and  the 
Danubian  principalities.  Foreign  genius  and  power  must 
continue  to  make  for  them  their  political  organizations  of 
highest  instance  as  it  has  done  in  the  past  and  does  now; 
for  in  all  of  these  cases  the  incapacity  is  not  one  of  degree 
simply,  but  one  of  kind.  There  is  a  diversity  of  gifts  among 
nations  as  among  individuals,  and  political  genius  seems  no 
more  to  have  been  bestowed  equally  than  other  kinds  of 
genius.  The  dispensation  of  history  seems  rather  to  be  and 
to  have  been  that  some  nations  shall  lead  the  world  in  re- 
ligion, others  in  art,  science  and  philosophy,  and  still  others 
in  politics  and  law.  ^ 

Second.  The  psychology  of  the  Celt  is,  if  anything,  still 
more  unpolitical  than  that  of  the  Greek  and  the  Slav.  Thi§~* 
is  somewhat  singular,  since  the  Celts  were  further  removed, 
territorially,  from  the  influences  of  Asia  than  the  Greeks  and 
Slavs.  The  Asiatic  ideals,  customs  and  traditions  are  all 
unpolitical,  as  I  have  elsewhere  shown,  and  it  might  naturally 
be  expected  that  when  the  branches  of  the  Aryan  stock 
migrated  into  Europe,  those  going  farther  westward  would  be 
under  better  conditions  for  curing  this  failing  in  the  Asiatic 
character.  However  that  may  be,  the  Celts  made  nothing  of 
it.  On  the  other  hand,  while  they  produced  and  elaborated 
a  great  religion,  and  developed  a  learned  and  powerful  priest- 
hood, they  have  never  created  anything  in  the  political  world, 
which  they  can  call  distinctively  their  own,  higher  than  the 
personal  clanship.  Personal  attachment  in  small  bodie=  to 
a  chosen  chief  is  the  peculiar  political  trait   of   the  Celtic 


34  The  Nation. 

nations.1    This  has  appeared  in  all  places  occupied  by  them 
and  throughout  all  the  periods  of  their  history.    The  effect 
of  such  a  political  character  has  always  been  the  organization 
of  the  Celtic  nations  into  numberless  petty  military  states ; 
in  each  of  which  individual  rights  have  been  always  ignored ; 
between  all  of  which  civil  war  has  been  the  permanent  status ; 
and  against  all  of  which  foreign  force  has  been  continually 
successful.     Neither  in  highest  nor  lowest  instance  have  they 
created,  or  can  they  create,  political  institutions  of  a  superior 
order.     Many  examples  of  reckless  courage  and  touching  per- 
sonal devotion  are  to  be  met  with  in  their  history,  but  they 
have  never  manifested  any  consciousness    of   political  prin- 
ciples or  developed  any  constancy  in  political  purpose.     Gov- 
ernment  has    always  been  to    them   a   personal  affair,   and 
they  have  never  appeared  to  be  conscious  of  committing  any 
political  wrong  in  using  its  powers  for  personal  advantage. 
Violence  and  corruption  have  always  marked  the  politics  of 
Celtic  nations.     These  are  failings,  on  their  part,  rather  than 
positive  vices.    They  spring  from  the  want  of  political  genius 
rather   than   from  vicious    political    character.      The    Celtic 
nations  have  always  been  compelled  finally  to  suffer  political 
organization  by  foreign  talent,  and  have  therefore  become 
subject  nations.     It  would  be  irrational  to  dismiss  this  fact 
with  a  phrase  of  indignation  concerning  unrighteous  spolia- 
tion.    The  Celtic  nations  were  more  warlike  than  either  the 
Roman  or  the  German.     Had  they  possessed  fair  talent  for 
political  organization,  they  would  have  been  irresistible :  Italy, 
France  and  Britain  would  to-day  be  subject  to  them.     What- 
ever their  gift  may  be,  it  certainly  is  not,  and  never  has  been, 
political,  and  their  subjection  to  politically  endowed  nations 
in  state    organization  is  both   natural  and    necessary.     Any 
other  order  of  things  would  confound  distinctions  which  are 
implanted  in  the  psychologic  character  of  nations. 

1  Martin,  Histoire  de  France,  Vol.  I,  p.  45  ff.;  Prichard,  History  of  Mankind, 
Vol.  Ill,  p.  1 75. 


National  Political  Character.  35 

Third.  On  the  other  hand,  the  Roman  or  Latin  nations 
have  shown  from  the  earliest  beginnings  of  their  history 
great  political  and  legal  genius.  The  organization  of  govern- 
ment and  the  legal  formulation  of  rights  were  the  problems 
for  the  solution  of  which  they  seemed  peculiarly  called.  But 
the  juristic  and  political  faculties  are  themselves  not  simple, 
but  compound.  In  any  particular  nation  some  of  their  ele- 
ments may  exist  in  much  higher  degree  than  others,  and  vice 
versa.  The  Teutons  are  also  nations  of  high  political  and 
legal  endowment,  as  we  shall  see  further  on,  but  differing 
widely  from  the  Romans  in  the  composition  of  their  genius, 
as  will  appear  in  the  organizations  created  by  them.  A  fur- 
ther discrimination  is  therefore  necessary.  What  part  of  the 
great  problem  of  legal  and  political  organization  has  been 
worked  out  by  the  genius  of  the  Roman,  and  what  other  part 
by  that  of  the  Teuton  ?  I  cannot  answer  the  first  part  of  this 
question  better  than  Professor  Rudolph  von  Ihering  has  done 
in  the  introduction  to  his  brilliant  and  suggestive  work, 
Geist  des  romischen  Rechts.  "Three  times,"  he  writes,  "has 
Rome  dictated  the  order  of  the  world ;  three  times  has  she 
bound  the  nations  in  unity  together:  the  first  time,  when 
the  Roman  people  were  still  in  the  fulness  of  their  power, 
in  the  unity  of  the  state  ;  the  second  time,  after  they  had 
fallen  into  decline,  in  the  unity  of  the  church ;  the  third 
time,  in  consequence  of  the  reception  of  the  civil  law  in  the 
middle  ages,  in  the  unity  of  rights,  —  the  first  time  by  the  force 
of  arms,  but  the  second  and  third  times  by  the  power  of  ideas. 
The  world-historic  significance  and  mission  of  Rome,  ex- 
pressed in  a  single  word,  is  the  triumph  of  the  principle  of 
universality  over  national  diversity."  x  The  universal  empire 
is  the  institution  peculiar  to  the  Roman  political  genius.  Its 
creation  is  a  majestic  work  of  political  capacity  and  power. 

1  Von  Ihering,  Geist  des  romischen  Rechts,  Bd.  I,  S.  I ;    Bluntschli,  Lehre 
vom  modernen  Stat,  Bd.  I,  S.S.  29,  41. 


36  The  Nation. 

Theoretically,  at  least,  it  solves  the  question  of  defence  of 
the  state  against  the  external  foe ;  in  fact,  the  complete 
realization  of  its  principle  would  leave  no  external  foe.  It 
would  comprehend  mankind  within  its  organization.  It  also 
solves  the  question  of  the  relation  of  all  local  organizations 
within  the  state  ;  in  fact,  in  the  complete  realization  of  its 
principle  there  can  be  no  local  organization,  except  in  the 
form  of  an  imperial  agency.  On  the  other  hand,  it  has  its 
failings;  and  so  soon  as  its  mission  has  been  fulfilled  —  the 
mission  of  diffusing  political  civilization,  of  making  it  univer- 
sal—  these  failings  appear  unendurable.  But  these  failings 
are  the  necessary  result  of  the  imperial  ideal  itself.  In  the 
first  place,  it  must  sacrifice  in  large  degree  the  liberty  of  the 
individual.  Uniformity  is  its  deepest  law ;  and  therefore  its 
rule  of  individual  conduct  must  be  that  what  is  not  expressly 
permitted  is  forbidden.  In  the  second  place,  it  cannot  popu- 
larize its  government.  Unity  and  fixedness  of  purpose  must 
reign  always  and  everywhere.  In  the  long  run  this  will  stifle 
and  destroy  the  capacity  of  the  individual  subject.  His  edu- 
cation and  development  must  not  only  be  neglected,  but  hin- 
dered and  prevented,  in  order  that  his  unquestioned  obedience 
may  be  secured  and  preserved.  In  the  third  place,  the  empire 
must  suppress  all  local  autonomy.  Law  and  ordinance  must 
be  one  and  the  same  in  every  district  and  for  every  part  of 
the  population.  In  the  fourth  place,  it  must  ignore  and  de- 
stroy all  ethnical  differences,  for  that,  above  all  things,  is  its 
mission  and  its  significance.  It  is  of  course  possible  that  if 
the  seat  of  the  Roman  Empire  had  remained  in  Rome  instead 
of  having  been  removed  to  Constantinople,  and  if  the  German 
invasion  had  been  successfully  repelled,  the  strong  political 
genius  of  the  Romans  might  in  practice  have  found  the  rem- 
edy for  these  failings,  and  been  able  to  reconcile  uniformity 
with  variety,  sovereignty  with  liberty ;  but  I  do  not  think  it 
probable.  This  was  not  the  mission  of  the  Romans  in  the 
civilization  of  the  world,  if  history  is  to  be  taken  as  indis- 


National  Political  Character.  37 

putable  evidence  of  the  missions  of  nations.     This  was  the 
work  reserved  to  the  Teutonic  nations. 

Fourth  and  last,  we  come  to  consider  the  political  psychol- 
ogy of  those  nations  which  may  be  termed  the  political  nations 
par  excellence,  viz ;  the  Teutonic  ;   and  if  the  peculiar  crea- 
tions of  these  nations  may  be  expressed  in  a  single  phrase, 
it    must    be    this  :  that    they  are    the    founders    of    national 
states.1     It  is  not  possible  to  divine  whether  this  great  work 
could  have  been  accomplished  by  them  without  the  training 
in  Roman  ideas  received  by  them  in  the  Carolingian  Empire 
and  the  Roman  Christian  Church.     The  Teutons  strove  most 
earnestly  and  determinedly,  during  the  earlier,  pre-Frankish 
period  of  their  political  history,  against  even  the  necessary 
organization  of  the  state,  and  came  to  the  consciousness  of 
their  mission  as  the  founders  of  national  states,  only  after 
half  a  century  of  life  in  the  European  Empire  of  the  great 
Charles  ;  but  education  can  only  develop  what  already  exists 
in  seed  and  germ,  and  we  may  therefore  conclude  that  no 
amount  of    Roman  discipline,  which  was    distinctly  anti-na- 
tional in  its  universality,  could    have    evolved   the    national 
idea  unless  this  had  been  an  original  principle  of  Teutonic 
political  genius.      Even  before  their  union  with  each  other 
and  with  Romanic  populations  in  the  Frankish  Empire,  the 
continental  Teutons  showed  this  national  tendency,  in  that 
their  political  organizations  were  co-extensive,  generally,  with 
the  lines  of  dialect  and  custom.     Their  restlessness  under, 
and  resistance  to,  the  system  of  the  European  Empire  sprang 
from  their  feeling  of  its  unnational  character ;  and  since  the 
division   of   the   Empire  in  843   they  have  pursued,  with  a 
gradually    but    continually    growing    consciousness    of   their 

political  mission,  their  work  of  establishing  states  upon  the 

— I 
principle  of  national  union  and  independence.     Almost  every1 

state  of  modern  Europe  owes  its  organization  to  the  Teutons. 

1  Laurent,  Etudes  sur  l'histoire  de  l'humanite,  Tome  X,  p.  43. 


38  The  Nation. 

The  Visigoths  in  Spain,  the  Suevi  in  Portugal,  the  Lombards 
in  Italy,  the  Franks  in  France  and  Belgium,  the  Anglo- 
Saxons  and  Normans  in  England,  the  Scandinavian  Teutons 
in  Denmark,  Norway  and  Sweden,  and  the  Germans  in  Ger- 
many, Holland,  Switzerland  and  Austria  have  been  the  domi- 
nant elements  in  the  creation  of  these  modern  national  states ; 
and  to-day  Teutonic  houses  are  organizing  Greece,  Rumania, 
and  the  principalities  along  the  Danube,  and  even  Russia.  The 
United  States  also  must  be  regarded  as  a  Teutonic  national 
state.  In  the  light  of  history  and  of  present  fact,  our  propo- 
sitions cannot  be  successfully  disputed,  that  the  significant 
production  of  the  Teutonic  political  genius  is  the  national 
state ;  that  only  the  Teutonic  nations  have  produced  national 
states  ;  and  that  they  have  proved  their  intense  positive  force 
in  this  direction  by  creating  national  states  upon  the  basis  of 
populations  belonging  to  other  races,  even  upon  the  basis 
of  a  population  belonging  to  a  race  of  so  high  political  endow- 
ment as  the  Roman. 

The  national  state  is  the  most  modern  product  of  political 
history,  political  science  and  practical  politics.1  It  conies 
nearer  to  solving  all  the  problems  of  political  organization 
than  any  other  system  as  yet  developed.  In  the  first  place, 
it  rescues  the  world  from  the  monotony  of  the  universal  em- 
pire. This  is  an  indispensable  condition  of  political  progress. 
We  advance  politically,  as  well  as  individually,  by  contact, 
competition  and  antagonism.  The  universal  empire  sup- 
presses all  this  in  its  universal  reign  of  peace,  which  means, 
in  the  long  run,  stagnation  and  despotism.  At  the  same 
time,  the  national  state  solves  the  problem  of  the  relation 
between  states  by  the  evolution  of  the  system  of  interna- 
tional law.  Through  this  it  preserves  most  of  the  advan- 
tages of  the  universal  empire  while  discarding  its  one-sided 
and  intolerant  character.     In  the  second  place,  the  national 

1  Eluntschli,  Lehre  vom  modernen  Stat,  Bd.  I,  S.  52  ff. 


National  Political  Character.  39 

state  solves  the  problem  of  the  relation  of  sovereignty  to 
liberty ;  so  that  while  it  is  the  most  powerful  political  organi- 
zation that  the  world  has  ever  produced,  it  is  still  the  freest. 
This  is  easy  to  comprehend.  The  national  state  permits  the 
participation  of  the  governed  in  the  government.  In  a 
national  state  the  population  have  a  common  language  and  a 
common  understanding  of  the  principles  of  rights  and  the 
character  of  wrongs.  This  common  understanding  is  the 
strongest  moral  basis  which  a  government  can  possibly  have ; 
and,  at  the  same  time,  it  secures  the  enactment  and  adminis- 
tration of  laws  whose  righteousness  must  be  acknowledged, 
and  whose  effect  will  be  the  realization  of  the  truest  liberty. 
In  the  third  place,  the  national  state  solves  the  question  of  the 
relation  of  central  to  local  government,  in  that  it  rests  upon 
the  principle  of  self-government  in  both  domains.  In  the  per- 
fect national  state  there  can  thus  be  no  jealousy  between  the 
respective  spheres  ;  and  the  principle  will  be  universally  rec- 
ognized that,  where  uniformity  is  necessary,  it  must  exist ; 
but  that  where  uniformity  is  not  necessary,  variety  is  to  reign 
in  order  that  through  it  a  deeper  and  truer  harmony  may  be 
discovered.  The  national  state  is  thus  the  most  modern  and 
the  most  complete  solution  of  the  whole  problem  of  political 
organization  which  the  world  has  as  yet  produced  ;  and  the 
fact  that  it  is  the  creation  of  Teutonic  political  genius  stamps 
the  Teutonic  nations  as  the  political  nations  par  excellence, 
and  authorizes  them,  in  the  economy  of  the  world,  to  assume 
the  leadership  in  the  establishment  and  administration  of 
states. 


40  The  Nation. 


CHAPTER   IV. 

CONCLUSIONS  OF  PRACTICAL  POLITICS  FROM  THE  FOREGOING 
CONSIDERATIONS  IN  REGARD  TO  PHYSICAL,  ETHNICAL  AND 
POLITICAL    GEOGRAPHY,    AND    NATIONAL    CHARACTERISTICS. 

We  conclude,  in  the  first  place,  that  national  unity  is  the 
determining  force  in  the  development  of  the  modern  consti- 
tutional states.  The  prime  policy,  therefore,  of  each  of  these 
states  should  be  to  attain  proper  physical  boundaries  and 
to  render  its  population  ethnically  homogeneous.  In  other 
words,  the  policy  in  modern  political  organization  should  be 
to  follow  the  indications  of  nature  and  aid  the  ethnical  im- 
pulse to  conscious  development. 

Where  two  or  more  independent  states  are  situated  in  one 
and  the  same  geographical  unity,  it  is  presumably  a  sound 
policy  which  seeks  the  union  of  these  states  in  a  more  gen- 
eral political  organization  or  the  absorption  by  one  —  the 
most  capable  and  powerful  —  of  the  others.  Which  one  of 
these  courses  should  be  pursued  depends  upon  the  circum- 
stances of  each  case.  If  the  populations  of  the  several  states 
vary  in  their  ethnical  character  and  yet  possess  about  equal 
political  capacity,  the  united  state  with  a  federal  system  of 
government  will  be  the  more  natural  arrangement  and  the 
one  more  easy  of  attainment.  If,  one  the  other  hand,  the 
population  of  one  of  them  far  excels  the  populations  of 
the  others  in  political  endowment  and  power  of  political 
organization,  then  annexation  and  absorption  of  the  other 
states  by  the  superior  state  will  work  the  best  results  in  the 
advancement  of  political  civilization.  If,  finally,  the  ethnical 
character  of  these  different  states  be  the  same,  then  it  will 
make    little    difference,  as    a   rule,    whether   their   unity   be 


Conclusions  of  Practical  Politics.  41 

attained  by  federalization  or  by  absorption.  When  a  state 
insists  upon  the  union  with  it  of  all  states  occupying  the 
same  geographic  unity  and  attains  this  result  in  last  resort 
by  force,  the  morality  of  its  action  cannot  be  doubted  in 
sound  practical  politics,  especially  if  the  ethnical  composi- 
tion of  the  populations  of  the  different  states  is  the  same 
or  nearly  the  same.  What  unprejudiced  publicist  or  states- 
man questions  to-day  the  morality  of  the  policy  of  Prussia 
in  the  foundation  of  the  German  Empire,  or  of  Sardinia  in 
the  political  unification  of  Italy  ?  And  who  does  not  see  that 
the  further  rounding  out  of  the  European  states  to  accord 
still  more  nearly  with  the  boundaries  which  nature  has  indi- 
cated would  be  in  the  interest  of  the  advancement  of  Europe's 
political  civilization  and  of  the  preservation  of  the  general 
peace  ?  It  would  expel  the  Turk  from  Europe  :  it  would  put 
an  end  to  Russian  intrigue  in  the  valley  of  the  Danube  :  it 
would  give  Greece  the  vigor  and  the  power  to  become  a  real 
state;  and  it  would  bring  the  petty  states  of  Switzerland, 
Denmark,  Holland,  Luxemburg,  Belgium,  and  Portugal  into 
connections  which  would  enable  their  populations  to  contrib- 
ute, in  far  greater  degree,  to  the  political  civilization  of  the 
world,  and  receive,  in  far  greater  degree,  the  benefits  of  that 
civilization,  than  their  present  conditions  permit.  Even  then 
there  would  be  weak  places  enough  in  the  boundaries  of  each 
national  state,  but  their  number  would  be  greatly  decreased,  and 
the  temptation  to  invasion  which  they  offer  greatly  lessened. 
On  the  other  hand,  if  a  state  organization  extends  over 
several  geographic  unities,  then  there  is  good  ground,  in 
sound  public  policy,  to  consider  whether  the  political  civiliza- 
tion of  the  world  would  not  be  advanced  by  its  separation 
into  several  independent  states,  corresponding  in  political 
extent  with  the  boundaries  indicated  by  nature.  Especially 
will  this  be  true  if  the  ethnical  character  of  the  populations 
of  these  several  geographic  unities  be  different.  If,  however, 
the  ethnical  character  be  the  same,  the  geographical  reason 


42  The  Nation. 

for  partition  is,  in  this  day  of  steam  and  electricity,  by  no 
means  conclusive. 

Again,  where  the  population  of  a  state  is  composed  of  sev- 
eral nationalities,  we  are  forced  to  conclude  that  it  will  be 
sound  policy  in  the  state  to  strive  to  develop  ethnical  homo- 
geneity. The  morality  of  a  policy  which  insists  upon  the  use 
of  a  common  language  and  upon  the  establishment  of  homo- 
geneous institutions  and  laws  cannot  be  successfully  disputed. 
Under  certain  circumstances  the  exercise  of  force  to  secure 
these  ends  is  not  only  justifiable,  but  commendable  ;  and  not 
only  commendable,  but  morally  obligatory.  Take,  for  exam- 
ple, this  condition  of  things.  A  state,  we  will  say,  has  a  nat- 
urally exposed  boundary.  It  must  rely,  therefore,  in  extraor- 
dinary degree  upon  the  loyalty  of  that  part  of  its  population 
resident  along  such  boundary ;  in  other  words,  the  intensest 
national  spirit  must  exist  here  ;  and  if  it  does  not,  the  state  must 
create  it  at  all  costs.  If  now  a  portion  of  this  frontier  pop- 
ulation be  ethnically  hostile,  the  state  is  then  in  perfect  right 
and  follows  a  sound  policy  when,  after  having  made  all  rea- 
sonable efforts  to  nationalize  them,  it  deports  them,  in  order 
to  make  way  for  a  population  which  will  serve  as  necessary 
defence  against  the  violence  and  the  intrigue  of  the  foreign 
neighbor.  It  should,  however,  make  other  provisions  for 
them,  if  possible,  or  pay  them  a  just  compensation  for  the 
expropriation  of  their  vested  rights.  Again,  let  us  suppose 
the  case  of  a  great  colonial  empire.  Its  life  will  depend,  of 
course,  upon  the  intensest  nationality  in  that  part  of  its  ter- 
ritory which  is  the  nucleus  of  the  entire  organization.  It. 
cannot  suffer  national  conflicts  to  make  this  their  battle- 
ground. The  reigning  nationality  is  in  perfect  right  and  pur- 
sues, from  a  scientific  point  of  view,  an  unassailable  policy 
when  it  insists,  with  unflinching  determination,  upon  ethni- 
cal homogeneity  here.1  It  should  realize  this,  of  course, 
through  the  peaceable  means  of  influence  and  education,  if 

1  Bluntschli,  Lehre  void  modernen  Stat,  Bd.  I,  S.  305. 


Conclusions  of  Practical  Politics.  43 

possible.  When,  however,  these  shall  have  been  exhausted 
in  vain,  then  force  is  justifiable.  It  may  righteously  deport 
the  ethnically  hostile  element  in  order  to  shield  the  vitals  of 
the  state  from  the  forces  of  dissolution,  and  in  order  to  create 
the  necessary  room  for  a  population  sufficient  in  numbers,  in 
loyalty,  and  capacity  to  administer  the  empire  and  protect  it_ 
against  foreign  powers.  It  should,  of  course,  make  other 
provision,  if  possible,  for  the  deported  population  in  less 
important  parts  of  its  territory,  or  at  least  make  just  compen- 
sation for  the  expropriation  of  vested  rights ;  but  the  state 
cannot  safely  or  righteously  give  way,  in  such  a  case,  to 
sentimental  politics  and  the  claim  of  an  inalienable  right  to 
fatherland.  This  cry  is  but  a  mockery  in  the  mouths  of 
men  whose  presence  in  the  fatherland  threatens  to  render  it 
incapable  of  fulfilling  its  mission  or  maintaining  its  own  exist- 
ence. In  practical  politics  we  cannot  lose  the  great  morale 
in  the  petty. 

A  fortiori,  a  state  is  not  only  following  a  sound  public  pol- 
icy, but  one  which  is  ethnically  obligatory  upon  it,  when  it 
protects  its  nationality  against  the  deleterious  influences  of 
foreign  immigration.  Every  state  has,  of  course,  a  duty  to 
the  world.  It  must  contribute  its  just  share  to  the  civiliza- 
tion of  the  world.  In  order  to  discharge  this  duty,  it  must 
open  itself,  as  freely  as  is  consistent  with  the  maintenance  of 
its  own  existence  and  just  interests,  to  commerce  and  inter- 
course, ingress  and  egress ;  but  it  is  under  no  obligation  to 
the  world  to  go  beyond  these  limits.  It  cannot  be  demanded 
of  a  state  that  it  sacrifice  itself  to  some  higher  good.  It 
cannot  fulfil  its  mission  in  that  way.  It  represents  itself  the 
highest  good.  It  is  the  highest  entity.  The  world  has  as 
yet  no  organization  into  which  a  state  may  merge  its  exist- 
ence. The  world  is  as  yet  only  an  idea.  It  can  give  no 
passports  which  a  state  is  bound  to  accept.  The  duty  of  a 
state  to  the  world  is  a  duty  of  which  the  state  itself  is  the 
highest  interpreter.     The  highest  duty  of  a  state  is  to  pre- 


44  The  Nation. 

serve  its  own  existence,  its  own  healthful  growth  and  devel- 
opment. So  long  as  foreign  immigration  contributes  to  these, 
it  is  sound  policy  not  only  to  permit,  but  to  cultivate  it.  On 
the  other  hand,  when  the  national  language,  customs,  and 
institutions  begin  to  be  endangered  by  immigration,  then  the 
time  has  come  for  the  state  to  close  the  gateways  partly 
or  wholly,  as  the  case  may  require,  and  give  itself  time  to 
educate  the  incomers  into  ethnical  harmony  with  the  funda- 
mental principles  of  its  own  individual  life.  It  is  a  most 
dangerous  and  reprehensible  piece  of  demagogism  to  demand 
that  a  state  shall  suffer  injury  to  its  own  national  existence 
through  an  unlimited  right  of  ingress;  and  it  is  an  unen- 
durable piece  of  deception,  conscious  or  unconscious,  when 
the  claim  is  made  from  the  standpoint  of  a  superior  human- 
ity. Certainly  the  Providence  which  created  the  human  race 
and  presides  over  its  development  knows  best  what  are  the 
true  claims  of  humanity ;  and  if  the  history  of  the  world  is 
to  be  taken  as  the  revelation  of  Providence  in  regard  to  this 
matter,  we  are  forced  to  conclude  that  national  states  are 
intended  by  it  as  the  prime  organs  of  human  development ; 
and,  therefore,  that  it  is  the  highest  duty  of  the  state  to  pre- 
serve, strengthen,  and  develop  its  own  national  character. 

My  second  conclusion  from  the  facts  considered  in  the 
previous  chapter  is  that  the  Teutonic  nations  are  particularly 
endowed  with  the  capacity  for  establishing  national  states, 
and  are  especially  called  to  that  work  ;  and,  therefore,  that 
they  are  intrusted,  in  the  general  economy  of  history,  with 
the  mission  of  conducting  the  political  civilization  of  the 
modern  world.  The  further  conclusions  of  practical  politics 
from  this  proposition  must  be,  that  in  a  state  whose  popula- 
tion is  composed  of  a  variety  of  nationalities  the  Teutonic 
element,  when  dominant,  should  never  surrender  the  balance 
of  political  power,  either  in  general  or  local  organization,  to 
the  other  elements.  Under  certain  circumstances  it  should 
not   even   permit    participation    of   the    other    elements    in 


Conclusions  of  Practical  Politics.  45 

political  power.  It  should,  of  course,  exercise  all  political 
power  with  justice  and  moderation  —  it  is  these  very  qualities 
of  the  Teutonic  character  which  make  it  par  excellence 
political.  It  should  also,  of  course,  secure  individual  liberty, 
or  civil  liberty,  as  we  term  it  here,  to  all ;  but,  under  certain 
circumstances,  some  of  which  will  readily  suggest  themselves 
to  the  mind  of  any  observing  American,  the  participation  of 
other  ethnical  elements  in  the  exercise  of  political  power  has 
resulted,  and  will  result,  in  corruption  and  confusion  most 
deleterious  and  dangerous  to  the  rights  of  all,  and  to  the 
civilization  of  society.  The  Teutonic  nations  can  never 
regard  the  exercise  of  political  power  as  a  right  of  man. 
With  them  this  power  must  be  based  upon  capacity  to  dis- 
charge political  duty,  and  they  themselves  are  the  best  organs 
which  have  as  yet  appeared  to  determine  when  and  where/ 
this  capacity  exists.  In  a  state  whose  controlling  nationality 
is  Teutonic,  but  which  contains  other  ethnical  varieties,  it  will 
always  be  sound  policy  to  confer  upon  these  alien  elements 
the  privilege  of  participating  in  the  exercise  of  political  power 
only  after  the  state  shall  have  nationalized  them  politically. 
It  must  not,  of  course,  seek  to  prevent  or  delay  nationaliza- 
tion in  order  to  be  able  to  exercise  oppression  —  that  would 
be  to  deny  its  very  calling ;  but,  on  the  other  hand,  it  must 
hot  hasten  the  enfranchisement  of  those  not  yet  ethnically 
qualified  for  reasons  outside  of  such  qualification.  Again,  i 
another  conclusion  from  our  proposition  in  reference  to  the 
mission  of  the  Teutonic  nations  must  be  that  they  are  called 
to  carry  the  political  civilization  of  the  modern  world  into 
those  parts  of  the  world  inhabited  by  unpolitical  and  barbaric 
races  ;  i.e.  they  must  have  a  colonial  policy.  It  is  difficult  for 
North  Americans  to  regard  this  duty  in  its  true  light,  in  spite 
of  the  fact  they  themselves  owe  their  own  existence  to  such 
a  policy.  They  are  far  too  much  inclined  to  regard  any  pol- 
icy of  this  character  as  unwarrantable  interference  in  the 
affairs  of  other  states.     They  do  not  appear  to  give  due  con- 


46  The  Nation. 

sideration  to  the  fact  that  by  far  the  larger  part  of  the  surface 
of  the  globe  is  inhabited  by  populations  which  have  not  suc- 
ceeded in  establishing  civilized  states  ;  which  have,  in  fact,  no 
capacity  to  accomplish  such  a  work  ;  and  which  must,  therefore, 
remain  in  a  state  of  barbarism  or  semi-barbarism,  unless  the 
political  nations  undertake  the  work  of  state  organization  for 
them.  This  condition  of  things  authorizes  the  political  nations 
not  only  to  answer  the  call  of  the  unpolitical  populations  for 
aid  and  direction,  but  also  to  force  organization  upon  them  by 
any  means  necessary,  in  their  honest  judgment,  to  accomplish 
this  result.  There  is  no  human  right  to  the  status  of  barbar- 
ism. The  civilized  states  have  a  claim  upon  the  uncivilized 
populations,  as  well  as  a  duty  towards  them,  and  that  claim  is 
that  they  shall  become  civilized ;  and  if  they  cannot  accom- 
plish their  own  civilization,  then  must  they  submit  to  the 
powers  that  can  do  it  for  them.  The  civilized  state  may 
righteously  go  still  further  than  the  exercise  of  force  in 
imposing  organization.  If  the  barbaric  populations  resist  the 
same,  a  Font  ranee,  the  civilized  state  may  clear  the  territory 
of  their  presence  and  make  it  the  abode  of  civilized  man. 
The  civilized  state  should,  of  course,  exercise  patience  and 
forbearance  toward  the  barbaric  populations,  and  exhaust 
every  means  of  influence  and  of  force  to  reduce  them  to  sub- 
jection to  its  jurisdiction  before  adopting  this  policy  of  expul- 
sion ;  but  it  should  not  be  troubled  in  its  conscience  about 
the  morality  of  this  policy  when  it  becomes  manifestly  neces- 
sary. It  violates  thereby  no  rights  of  these  populations  which 
are  not  petty  and  trifling  in  comparison  with  its  transcendent 
right  and  duty  to  establish  political  and  legal  order  every- 
where. There  is  a  great  deal  of  weak  sentimentality  abroad 
in  the  world  concerning  this  subject.  So  far  as  it  has  any 
intellectual  basis,  it  springs  out  of  a  misconception  of  the 
origin  of  rights  to  territory,  and  a  lack  of  discrimination  in 
regard  to  the  capacities  of  races.  It  is  not  always  kept 
in    mind  that  there  can  be  no   dominion    over  territory  or 


Conclusions  of  Practical  Politics.  47 

property  in  land  apart  from  state  organization,  —  that  the 
state  is  the  source  of  all  titles  to  land  and  of  all  powers  over 
it.  The  fact  that  a  politically  unorganized  population  roves 
through  a  wilderness,  or  camps  within  it,  does  not  create 
rights,  either  public  or  private,  which  a  civilized  state,  pursu- 
ing its  great  world-mission,  is  under  any  obligations,  legal  or 
moral,  to  respect.  It  would  be  a  petty  morality  indeed  which 
would  preserve  a  territory  capable  of  sustaining  millions  of 
civilized  men  for  the  hunting-ground  of  a  few  thousand  sav- 
ages, or  make  its  occupation  depend  upon  contract  and  sale 
with  and  by  them. 

Finally,  we  must  conclude,  from  the  manifest  mission  of 
the  Teutonic  nations,  that  interference  in  the  affairs  of  popu- 
lations not  wholly  barbaric,  which  have  made  some  progress 
in  state  organization,  but  which  manifest  incapacity  to  solve 
the  problem  of  political  civilization  with  any  degree  of  com- 
pleteness, is  a  justifiable  policy.     No  one  can  question  that 
it    is    in    the    interest    of    the   world's    civilization    that    law 
and    order    and    the    true    liberty  consistent  therewith   shall 
reign  everywhere  upon  the  globe.     A  permanent  inability  on 
the  part  of  any  state  or  semi-state  to  secure  this  status  is  a 
threat  to  civilization  everywhere.     Both  for  the  sake  of  the 
half-barbarous  state  and  in  the  interest  of  the  rest  of  the 
world,  a  state  or  states,  endowed  with  the  capacity  for  politi- 
cal organization,  may  righteously  assume  sovereignty  over, 
and  undertake  to  create  state  order  for,  such  a  politically  in- 
competent population.       The   civilized  states  should  not,  of 
course,  act    with    undue    haste    in    seizing   power,  and    they 
should  never  exercise  the  power,  once  assumed,  for  any  other 
purpose  than  that  for  which  the  assumption  may  be  right- 
eously made,  viz;  for  the  civilization  of  the  subjected  popu- 
lation ;  but  they  are  under  no  obligation  to  await  invitation 
from  those  claiming  power  and  government  in  the  inefficient 
organization,  nor  from  those  subject  to  the  same.     The  civil- 
ized states  themselves  are  the  best  organs  which  have  yet 


48  The  Nation. 

appeared  in  the  history  of  the  world  for  determining  the 
proper  time  and  occasion  for  intervening  in  the  affairs  of 
unorganized  or  insufficiently  organized  populations,  for  the 
execution  of  their  great  world-duty.  Indifference  on  the 
part  of  Teutonic  states  to  the  political  civilization  of  the  rest 
of  the  world  is,  then,  not  only  mistaken  policy,  but  disregard 
of  duty,  and  mistaken  policy  because  disregard  of  duty.  In 
the  study  of  general  political  science  we  must  be  able  to  find 
a  standpoint  from  which  the  harmony  of  duty  and  policy  may 
appear.  History  and  ethnology  offer  us  this  elevated  ground, 
and  they  teach  us  that  the  Teutonic  nations  are  the  political 
nations  of  the  modern  era ;  that,  in  the  economy  of  history, 
the  duty  has  fallen  to  them  of  organizing  the  world  polit- 
ically ;  and  that  if  true  to  their  mission,  they  must  follow  the 
line  of  this  duty  as  one  of  their  chief  practical  policies. 


Book   II. 

THE    STATE. 


o*Kc 


CHAPTER    I. 

THE  IDEA  AND  THE  CONCEPTION  OF  THE  STATE. 

Definitions  of  so  comprehensive  a  term  as  the  state  are 
generally  one-sided  and  always  unsatisfactory.  Nevertheless 
they  are  useful  and  helpful.  This  is  primarily  a  question  of 
political  science.  Not  until  the  state  has  given  itself  a  defi- 
nite and  regular  form  of  organization,  i.e.  not  until  it  has 
formed  for  itself  a  constitution,  does  it  become  a  subject  of 
public  law.  It  may  be  said  that  a  state  cannot  exist  without 
a  constitution.  This  is  true  in  fact ;  but  the  state  can  be 
separated  in  idea  from  any  particular  form  of  organization, 
and  the  essential  elements  of  its  definition  can  be  found  in 
the  principle  or  principles  common  to  all  forms.  There  are 
two  ways  of  reaching  the  definition.  The  one  is  the  process 
of  pure  philosophy,  the  other  that  of  inductive  logic.  The 
one  gives  us  an  idea  of  the  reason,  the  other  a  concept  of  the 
understanding.  The  two  ought  to  coincide,  but  they  more 
frequently  differ.  The  sources  of  the  difference  are  manifold. 
Either  the  speculation  is  colored  by  fancy,  or  the  induction  is 
not  exhaustive.  Either  the  idea  is  too  abstract,  or  the  con- 
cept too  concrete.  There  is  something  deeper,  too,  than  the 
intellectual  character  of  the  particular  political  scientist, 
which  creates  this  disharmony  between  the  idea  and  the  con- 
cept  of  the  state.  The  idea  of  the  state  is  the  state  perfect 
and  complete.     The  concept  of  the  state  is  the  state  develop- 

49 


5<d  The  State. 

ing  and  approaching  perfection.  There  is  one  thing,  how- 
ever, which  modifies  this  divergence  between  the  idea  and 
the  concept  of  the  state,  and  that  is  the  dependence,  after  all, 
of  the  speculative  philosopher  upon  objective  realities  to 
awaken  his  consciousness  of  the  idea.  This  brings  the  two 
nearer  together.  It  makes  the  idea  the  pioneer  of  the  con- 
cept, and  the  concept  the  stages  in  the  realization  of  the  idea. 
If  we  keep  in  mind  the  two  processes  followed  in  the  forma- 
tion of  the  definition,  we  shall  be  better  able  to  reconcile  the 
views  of  the  different  authors  upon  this  subject.  There  is 
nothing  more  disheartening  for  the  reader  than  to  be  dragged 
through  a  list  of  conflicting  definitions  at  the  beginning  of  a 
treatise,  and  to  be  required  to  select  the  principle  before  he 
knows  the  facts  and  details  of  the  subject ;  still  something 
of  the  sort  must  be  done,  briefly  and  tentatively  at  least,  in 
order  to  give  logical  consistence  to  the  work.  The  reader 
may  take  the  preliminary  definition  upon  trial  at  least,  and 
accept  it  with  a  temporary  faith. 

From  the  standpoint  of  the  idea  the  state  is  mankind 
viewed  as  an  organized  unit.1  From  the  standpoint  of  the 
concept  it  is  a  particular  portion  of  mankind  viewed  as  an 
organized  unit.2  From  the  standpoint  of  the  idea  the  territo- 
rial basis  of  the  state  is  the  world,  and  the  principle  of  unity 
is  humanity.  From  the  standpoint  of  the  concept,  again, 
the  territorial  basis  of  the  state  is  a  particular  portion  of  the 
earth's  surface,  and  the  principle  of  unity  is  that  particular 
phase  of  human  nature,  and  of  human  need,  which,  at  any 
particular  stage  in  the  development  of  that  nature,  is  predom- 
inant and  commanding.  The  former  is  the  real  state  of  the 
perfect  future.  The  latter  is  the  real  state  of  the  past,  the 
present,  and  the  imperfect  future.     In  a  treatise,  therefore, 

1  Bluntschli,  Lehre  vom  modernen  Stat,  Bd.  I,  S.  34.  "  Der  Stat  ist  die  organ- 
izirte  Menschheit.     Der  Stat  ist  der  Mann." 

2  Ibid.  S.  24.  "  Der  Stat  ist  die  politisch  organisirte  Volksperson  eines  be- 
stimmten  Landes." 


The  Idea  and  the  Conception  of  the  State.       5 1 

upon  public  law,  and  upon  political  science  only  as  connected 
with  public  law,  we  have  to  deal  only  with  the  latter.  Our 
definition  must,  therefore,  be  that  the  state  is  a  particular 
portion  of  mankind  viewed  as  an  organized  unit.  This  defi- 
nition requires  a  great  deal  of  analysis  and  explanation. 

I.  What  is  the  principle  according  to  which  the  portions 
of  mankind  forming  states  are  to  be  determined  ?  No  answer 
can  be  given  to  this  question  that  will  be  valid  for  all  times 
and  conditions.  In  the  ancient  civilization  the  principle  of 
common  blood  or  a  common  faith,  in  the  mediaeval  that  of 
personal  allegiance,  and  in  the  modern  that  of  territorial  citi- 
zenship, have  chiefly  determined  the  political  divisions  of  the 
world.  We  must  be  careful,  however,  not  to  separate  these 
principles,  as  to  the  time  of  their  application,  too  exactly  from 
each  other.  Each  of  them  reaches  out  beyond  its  proper 
period  and,  so  to  speak,  overlaps  the  next ;  creating  that  con- 
fusion in  regard  to  citizenship  and  alienage  which  every  pub- 
lic lawyer  meets  and  dreads.  But  these  answers  are  not 
wholly  satisfactory.  They  resolve  the  problem  in  part,  but 
they  raise  other  and  more  difficult  questions.  How  far  will  a 
bond  of  blood,  or  of  faith,  preserve  sufficient  strength  to  serve 
as  the  principle  of  political  organization  ?  What  are  the  cir- 
cumstances which  direct  personal  allegiance  towards  this 
point  or  that  ?  What  are  the  conditions  which  make  a  par- 
ticular territory  the  home  of  a  state  ?  With  these  questions, 
we  have  again  entered  the  domains  of  geography,  ethnology 
and  the  history  of  civilization.  In  so  far  as  the  modern  state 
is  concerned  —  i.e.  in  so  far  as  the  question  is  practical  — 
I  have  attempted  to  show,  in  the  previous  book,  what  answer 
these  sciences  afford.  As  to  the  ancient  and  mediaeval 
states,  we  can  only  say  that  their  principles  of  organization 
left  their  political  limits  and  boundaries  uncertain  and  inexact, 
producing  continual  unrest  and  conflict. 

II.  What  are  the  peculiar  characteristics  of  the  organ- 
ization which  we  term  the  state  ? 


52  The  Stale. 

First,  I  would  say  that  the  state  is  all-comprehensive. 
Its  organization  embraces  all  persons,  natural  or  legal,  and  all 
associations  of  persons.  Political  science  and  public  law  do 
not  recognize  in  principle  the  existence  of  any  stateless  per- 
sons within  the  territory  of  the  state.1 

Second,  the  state  is  exclusive.  Political  science  and  public 
law  do  not  recognize  the  existence  of  an  imperium  in  imperio. 
The  state  may  constitute  two  or  more  governments ;  it  may 
assign  to  each  a  distinct  sphere  of  action  ;  it  may  then  require 
of  its  citizens  or  subjects  obedience  to  each  government  thus 
constituted  ;  but  there  cannot  be  two  organizations  of  the 
state  for  the  same  population  and  within  the  same  territory.2 

Third,  the  state  is  permanent.  It  does  not  lie  within  the 
power  of  men  to  create  it  to-day  and  destroy  it  to-morrow,  as 
caprice  may  move  them.  Human  nature  has  two  sides  to 
it, — the  one  universal,  the  other  particular;  the  one  the 
state,  the  other  the  individual.  Men  can  no  more  divest 
themselves  of  the  one  side  than  of  the  other;  i.e.  they  cannot 
divest  themselves  of  either.  No  great  publicist  since  the 
days  of  Aristotle  has  dissented  from  this  principle.3  Anarchy 
is  a  permanent  impossibility. 

Fourth  and  last,  the  state  is  sovereign.  This  is  its  most 
essential  principle.  An  organization  may  be  conceived  which 
would  include  every  member  of  a  given  population,  or  every 
inhabitant  of  a  given  territory,  and  which  might  continue 
with  great  permanence,  and  yet  it  might  not  be  the  state.  If, 
however,  it  possesses  the  sovereignty  over  the  population,  then 
it  is  the  state.  What  now  do  we  mean  by  this  all-important 
term  and  principle,  the  sovereignty?  I  understand  by  it 
original,  absolute,  unlimited,  universal  power  over  the  individ- 
ual subject  and  over  all  associations  of  subjects.  This  is  a 
proposition  from  which  most  of  the  publicists,  down  to  the 

1  Bluntschli,  Das  moderne  Volkerrecht,  S.  216. 

3  Von  Mohl,  Encyklopadie  der  Staatswissenschaften,  S.  72. 

8  Ibid.  S.  71;  Bluntschli,  Lehre  vom  modernen  Stat,  Bd.  I,  S.  26. 


The  Idea  and  the  Conception  of  the  State.       53 

most  modern  period,  have  labored  hard  to  escape.  It  has 
appeared  to  them  to  contain  the  destruction  of  individual 
liberty  and  individual  rights.  The  principle  cannot,  however, 
be  logically  or  practically  avoided,  and  it  is  not  only  not  inim- 
ical to  individual  liberty  and  individual  rights,  but  it  is  their 
only  solid  foundation  and  guaranty.  A  little  earnest  reflec- 
tion will  manifest  the  truth  of  this  double  statement. 

First,  power  cannot  be  sovereign  if  it  be  limited ;  that 
which  imposes  the  limitation  is  sovereign  ;  and  not  until  we 
reach  the  power  which  is  unlimited,  or  only  self-limited,  have 
we  attained  the  sovereignty.  Those  who  hold  to  the  idea  of 
a  limited  sovereignty  (which,  I  contend,  is  a  contradictio  in 
adjectd)  do  not,  indeed,  assert  a  real  legal  limitation,  but  a 
limitation  by  the  laws  of  God,  the  laws  of  nature,  the  laws 
of  reason,  the  laws  between  nations.  But  who  is  to  inter- 
pret, in  last  instance,  these  principles,  which  are  termed  laws 
of  God,  laws  of  nature,  laws  of  reason,  and  laws  between 
nations,  when  they  are  invoked  by  anybody  in  justification 
of  disobedience  to  a  command  of  the  state,  or  of  the  powers 
which  the  state  authorizes  ?  Is  it  not  evident  that  this 
must  be  the  state  itself?  It  is  conceivable,  no  doubt,  that 
an  individual  may,  upon  some  point  or  other,  or  at  some  time 
or  other,  interpret  these  principles  more  truly  than  does  the 
state,  but  it  is  not  at  all  probable,  and  not  at  all  admissible  in 
principle.  It  is  conceivable,  also,  that  a  state  may  outgrow 
its  form  of  organization,  so  that  the  old  organization  no 
longer  contains  the  real  sovereignty ;  and  that  an  individual, 
or  a  number  of  individuals,  may  rouse  the  real  sovereign  to 
resist  triumphantly  the  commands  of  the  apparent  sovereign 
as  misinterpretations  of  the  truths  of  God,  nature,  and  rea- 
son. That  would  only  prove  that  we  had  mistaken  the  point 
of  sovereignty,  and  would  teach  the  lesson  that  the  state 
must  always  hold  its  form  to  accord  with  its  substance. 
When  the  French  National  Assembly  of  1789  disputed  the 
commands  of  the  King,  it  could  find  no  ground  to  rest  upon, 


54  The  State. 

either  in  logic  or  in  fact,  until  it  declared  the  sovereignty  to 
be  in  the  nation  —  in  the  nation  organized  in  the  Assembly. 
The  common  consciousness  is  the  purest  light  given  to  men 
by  which  to  interpret  truth  in  any  direction  ;  it  is  the  safest 
adviser  as  to  when  principle  shall  take  on  the  form  of  com- 
mand ;  and  the  common  consciousness  is  the  state  conscious- 
ness. In  the  modern  national  state  we  call  it  the  national 
consciousness.  The  so-called  laws  of  God,  of  nature,  of  rea- 
son, and  between  states  are  legally,  and  for  the  subject,  what 
the  state  declares  them  to  be  ;  and  these  declarations  and  com- 
mands of  the  state  are  to  be  presumed  to  contain  the  most 
truthful  interpretations  of  these  principles,  which  a  fallible 
and  developing  human  view  can,  at  the  given  moment,  dis- 
cover. It  is  begging  the  question  to  appeal  to  the  conscious- 
ness of  the  world  or  of  humanity  against  the  consciousness 
of  the  state ;  for  the  world  has  no  form  of  organization  for 
making  such  interpretation,  or  for  intervening  between  the 
state  and  its  citizens  to  nullify  the  state's  interpretation.  I 
do  not  ignore  the  fact  that  some  great  publicists  think  they 
see  in  the  body  of  general  agreements,  positive  and  custom- 
ary, between  states,  called  international  law,  the  postulates 
of  a  consciousness  wider  than  that  of  a  single  state.  This 
may  be  true  ;  but  we  must  not  forget  that  these  agreements 
and  customs  are  not  law  between  a  state  and  its  own  sub- 
jects unless  the  state  recognizes  them  as  such.  For  instance, 
it  is  a  firmly  established  principle  of  our  own  constitutional 
law  that  our  own  governmental  organs,  authorized  thereto  by 
the  state,  are  the  interpreters,  in  last  instance,  of  interna- 
tional law  for  all  persons  subject  to  their  jurisdiction.1  At 
the  present  stage  of  the  world's  civilization,  a  nearer  approxi- 
mation to  truth  seems  to  be  attainable  from  the  standpoint 
of  a  national  state  consciousness  than  from  the  standpoint  of 
what  is  termed  the  consciousness  of  mankind.     An  appeal 

1  Thirty  Hogsheads  of  Sugar  v.  Boyle,  U.  S.  Reports,  9  Cranch. 


The  Idea  and  the  Conception  of  the  State.       55 

to  the  consciousness  of  mankind,  if  it  bring  any  reply  at  all, 
will  receive  an  answer  confused,  contradictory,  and  unintel- 
ligible. In  the  far-distant  future  it  may  be  otherwise;  but 
for  the  present  and  the  discernible  future,  the  national  state 
appears  to  be  the  organ  for  the  interpretation,  in  last  instance, 
of  the  order  of  life  for  its  subjects.  Contact  between  states 
may,  and  undoubtedly  does,  clarify  and  harmonize  the  con- 
sciousness of  each  ;  but  it  is  still  the  state  consciousness 
which  is  the  sovereign  interpreter,  and  the  state  power  which 
is  the  sovereign  transformer  of  these  interpretations  into 
laws.  But,  it  may  be  objected,  if  sovereignty  must  have  this 
character  of  infallibility,  it  should  be  denied  to  the  state 
altogether.  That  would  mean,  at  once  and  from  the  start, 
the  annihilation  of  the  state.  The  state  must  have  the  power 
to  compel  the  subject  against  his  will :  otherwise  it  is  no 
state ;  it  is  only  an  anarchic  society.  Now  the  power  to  com- 
pel obedience  and  to  punish  for  disobedience,  is,  or  originates 
in,  sovereignty.  This  condition  can,  therefore,  offer  no  loop- 
hole of  escape  from  the  proposition. 

In  the  second  place,  the  unlimited  sovereignty  of  the  state 
is  not  hostile  to  individual  liberty,  but  is  its  source  and 
support.  Deprive  the  state,  either  wholly  or  in  part,  of  the 
power  to  determine  the  elements  and  the  scope  of  individual 
liberty,  and  the  result  must  be  that  each  individual  will  make 
such  determination,  wholly  or  in  part,  for  himself ;  that  the 
determinations  of  different  individuals  will  come  into  conflict 
with  each  other;  and  that  those  individuals  only  who  have 
power  to  help  themselves  will  remain  free,  reducing  the  rest 
to  personal  subjection.  It  is  true  that  the  sovereign  state 
may  confer  liberty  upon  some  and  not  upon  others,  or  more 
liberty  upon  some  than  upon  others.  But  it  is  also  true  that 
no  state  has  shown  so  little  disposition  to  do  this,  and  that 
no  state  has  made  liberty  so  full  and  general,  as  the  modern 
national  popular  state.  Now  the  modern  national  popular 
state  is  the  most  perfectly  and  undisputedly  sovereign  organ- 


56  The  State. 

ization  of  the  state  which  the  world  has  yet  attained.     It 
exempts  no  class  or  person  from  its  law,  and  no  matter  from 
its  jurisdiction.     It  sets  exact  limits  to  the  sphere  in  which  it 
permits  the  individual  to  act  freely.      It  is  ever  present  to 
prevent  the  violation  of  those  limits  by  any  individual  to  the 
injury  of  the  rights  and  liberties  of  another  individual,  or  of 
the  welfare  of  the  community.     It  stands  ever  ready,  if  per- 
chance the  measures  of    prevention  prove   unsuccessful,  to 
punish  such  violations.     This  fact  surely  indicates  that  the 
more  completely  and  really  sovereign  the  state  is,  the  truer 
and  securer  is  the  liberty  of  the  individual.     If  we  go  back 
an  era  in  the  history  of  political  civilization,  we  shall  find  this 
view  confirmed  beyond  dispute.     The  absolute  monarchies  of 
the  fifteenth,  sixteenth,  and  seventeenth  centuries  were,  no 
one  will  gainsay,  far  more  sovereign  organizations  of  the  state 
than  the  feudal  system  which  they  displaced ;  and  yet  they 
gave  liberty  to  the  common  man  at  the  same  time  that  they 
subjected  the  nobles  to  the  law  of  the  state.     In  fact  they 
gave  liberty  to  the  common  man  by  subjecting  the  nobles  to 
the  law  of  the  state.1     Should  we  continue  to  go  backward 
from   the  absolute   monarchic  system   to  those    systems    in 
which  the  sovereignty  of  the   state  was   less   and  less  per- 
fectly developed,  we  should  find  the  liberty  of  the  individual 
more  and  more  uncertain  and  insecure,  until  at  last  the  bar- 
barism of  individualism  would  begin  to  appear. 

At  the  beginning  of  this  argument,  I  assumed  the  state 
to  be  deprived  of  its  unlimited  power  over  the  individual. 
But  who  or  what  can  do  this  ?  That  which  can  be  so  de- 
prived is  not  the  state ;  that  which  deprives  is  the  state. 
Really  the  state  cannot  be  conceived  without  sovereignty  ;  i.e. 
without  unlimited  power  over  its  subjects.  That  is  its  very 
essence.     Of  course  the  state  may  abuse  its  unlimited  power 

1  Ranke,  Franzosische  Geschichte,  Bd.  I,  S.  34;  Englische  Geschichte,  Bd.  I, 
S.  97,  98;  Von  Sybel,  iiber  die  Entwickelung  derabsoluten  Monarchie  in  Preus- 
sen,  S.  24  ff.;  Krones,  Handbuch  der  Geschichte  Oesterreichs,  Bd.  IV,  S.  488. 


The  Idea  and  the  Conception  of  the  State.       57 

over  the  individual,  but  this  is  never  to  be  presumed.  It  is 
the  human  organ  least  likely  to  do  wrong,  and,  therefore,  we 
must  hold  to  the  principle  that  the  state  can  do  no  wrong. 

I  think  the  difficulty  which  lies  in  the  way  of  the  general 
acceptance  by  publicists  of  the  principle  of  the  sovereignty 
of  the  state  is  the  fact  that  they  do  not  sufficiently  distin- 
guish the  state  from  the  government.  They  see  the  danger 
to  individual  liberty  of  recognizing  an  unlimited  power  in  the 
government ;  and  they  immediately  conclude  that  the  same 
danger  exists  if  the  sovereignty  of  the  state  be  recognized. 
This  is  especially  true  of  European  publicists,  most  especially 
of  German  publicists.  They  are  accustomed  practically  to  no 
other  organization  of  the  state  than  in  the  government ;  and 
in  spite  of  their  speculative  mental  character,  they,  as  well 
as  other  men,  reveal  in  their  reflections  a  good  deal  of  de- 
pendence upon  the  conditions  of  the  objective  world.  In 
America  we  have  a  great  advantage  in  regard  to  this  subject. 
With  us  the  government  is  not  the  sovereign  organization 
of  the  state.  Back  of  the  government  lies  the  constitution ; 
and  back  of  the  constitution  the  original  sovereign  state, 
which  ordains  the  constitution  both  of  government  and  of 
liberty.  We  have  the  distinction  already  in  objective  reality ; 
and  if  we  only  cease  for  a  moment  conning  our  European 
masters  and  exercise  a  little  independent  reflection,  we  shall 
be  able  to  grasp  this  important  distinction  clearly  and 
sharply.  This  is  the  point  in  which  the  public  law  of  the 
United  States  has  reached  a  far  higher  development  than 
that  of  any  state  of  Europe.  Several  of  the  most  modern 
European  publicists,  such  as  Laband,  Von  Hoist  and  Jellinek, 
have  discovered  this  fact  ;  and  their  conception  of  the  state 
has,  in  consequence  thereof,  become  much  clearer.  The  Euro- 
pean states  have  made  great  progress  towards  this  condition 
since  the  period  of  the  French  Revolution.  Europe  has  seen 
the  French  state  several  times  organized  in  constituent  con- 
vention ;  and  in  the  years  1848  and  1867  something  very  like 


58  The  State. 

constituent  conventions  sat  at  Frankfort  and  Berlin,  to  say 
nothing  of  the  Spanish  Cortes  and  the  less  important  move- 
ments of  similar  character.  Such  an  organization  of  the 
state  is,  however,  hostile  to  independent  princely  power.  It 
tends  to  subject  the  prince  to  the  state.  It  may  leave  the 
hereditary  tenure,  but  it  makes  the  princely  power  an  office 
instead  of  a  sovereignty.  Therefore  the  princely  government 
disputes  the  sovereignty  of  the  constituent  convention ;  and 
the  political  scientists  become  confused  in  their  reflections 
by  the  din  and  smoke  of  the  conflict  in  the  objective  world. 
They  do  not  know  exactly  where  the  state  is ;  and,  therefore, 
they  hesitate  to  recognize  its  great  and  essential  attribute  of 
sovereignty.  The  national  popular  state  alone  furnishes  the 
objective  reality  upon  which  political  science  can  rest  in  the 
construction  of  a  truly  scientific  political  system.  All  other 
forms  contain  in  them  mysteries  which  the  scientific  mind 
must  not  approach  too  closely. 


The  Origin  of  the  State.  59 


CHAPTER   II. 

THE    ORIGIN    OF    THE    STATE. 

This  has  been,  and  is  still,  a  greatly  mooted  question.  The 
views  of  publicists  and  jurists  differ  widely  in  regard  to  it. 
I  think,  however,  that  these  divergences  of  opinion  may  be 
so  classified  as  to  reduce  the  apparently  numerous  shades 
of  difference  to  three  propositions.  I  will  call  the  first  of 
these  the  theological  theory,  the  second  the  social,  and  the 
third  the  historical.  The  first  claims  that  the  state  is  founded 
by  God,  the  second  that  it  is  founded  by  human  agreement, 
and  the  third  that  it  is  the  product  of  history.  I  think  the 
latter  is  the  true  view,  and  that,  when  correctly  compre- 
hended, it  will  be  seen  to  do  full  justice  to  the  other  two, 
and  to  reconcile  all  three.  The  proposition  that  the  state  is 
the  product  of  history  means  that  it  is  the  gradual  and  con- 
tinuous development  of  human  society,  out  of  a  grossly 
imperfect  beginning,  through  crude  but  improving  forms  of 
manifestation,  towards  a  perfect  and  universal  organization 
of  mankind.  It  means,  to  go  a  little  deeper  into  the  psy- 
chology of  the  subject,  that  it  is  the  gradual  realization,  in 
legal  institutions,  of  the  universal  principles  of  human  nature, 
and  the  gradual  subordination  of  the  individual  side  of  that 
nature  to  the  universal  side.  Many  were  the  centuries  before 
the  human  mind  became  even  partially  conscious  of  the  state 
in  idea,  character  and  purpose.  The  state  existed  as  a  fact 
long  before  it  was  known  and  understood,  and  its  powers 
were  long  exercised  under  forms  which  we  do  not  now  regard 
as  political  at  all.  If  the  theologian  means,  by  his  doctrine  of 
the  divine  origin  of  the  state,  simply  that  the  Creator  of  man 


60  The  State. 

implanted  the  substance  of  the  state  in  the  nature  of  man, 
the  historian  will  surely  be  under  no  necessity  to  contradict 
him.  The  unbiassed  political  historian  will  not  only  not  dis- 
pute this  proposition,  but  he  will  teach  that  the  state  was 
brought  through  the  earlier  and  most  difficult  periods  of  its 
development  by  the  power  of  religion,1  and  in  the  forms  of 
religion ;  i.e.  that  the  earliest  forms  of  the  state  were  theocratic. 
This  is  entirely  comprehensible  from  the  standpoint  of  a 
correct  political  philosophy.  The  first  and  most  fundamental 
psychological  principle  concerned  in  the  development  of  the 
state  is  that  of  piety ;  i.e.  reverence  and  obedience.  Unless 
the  character  of  the  mass  of  the  population  be  moulded  by 
this  principle,  the  reign  of  law  can  never  be  attained.  Now 
the  lifting  of  this  principle  from  under  the  barbaric  powers 
of  hate  and  defiance,  was  the  first  tremendous  struggle  of 
civilization  with  barbarism.  It  took  thousands  of  years  to 
accomplish  it,  and  exhausted  the  spiritual  powers  of  all  Asia 
in  its  accomplishment.  I  have  already  indicated  the  fact  that 
Asia  has  produced  no  real  states.  Asia  has,  on  the  other 
hand,  produced  all  the  great  religions  of  the  world.  This 
will  not  be  held  to  mean,  however,  that  Asia  has  done  nothing 
towards  the  historical  development  of  the  state,  when  we  con- 
sider that  her  religions  have  educated  and  disciplined  the 
larger  part  of  the  human  race  in  that  preparatory  spiritual 
principle  absolutely  indispensable  to  the  development  of  the 
state.  It  is  often  said  by  modern  writers  that  Asia  is  but 
the  home  of  theocracies  and  despotisms.  This  is  undoubtedly 
true,  but  it  should  not  be  taught  in  the  language  of  depre- 
ciation. Theocracies  and  despotisms  have  their  place  in  the 
historical  development  of  the  state  ;  and  their  work  is  as 
indispensable  in  the  production  of  political  civilization  as  is 
that  of  any  other  form  of  organization.     We  have  not  done 


1  Laurent,  Etudes  sur  l'histoire  de  l'humanite,  Tome  I,  p.  98;    Von  Ranke, 
Weltgeschichte,  Erster  Theil,  S.  I . 


The  Origin  of  the  State.  6 1 

with  them  yet,  either.  The  need  of  them  repeats  itself 
wherever  and  whenever  a  population  is  to  be  dragged  out  of 
barbarism  up  to  the  lowest  plane  of  civilization.  To  subject 
barbaric  liberty  to  law,  is  the  first  problem  in  the  develop- 
ment of  the  state  everywhere  ;  and  the  world's  history 
teaches  no  way  to  accomplish  this  save  through  the  theoc- 
racies and  the  despotisms  based  thereon.  Every  close  reader 
of  Europe's  political  civilization  knows  that  the  political 
organization  of  the  European  states  rested  originally  upon  the 
union  of  the  throne  and  altar ;  i.e.  upon  the  principle  of  the 
Asiatic  despotism.  The  principle,  so  happily  expressed  by 
Rousseau,  that  "le  plus  fort  n'est  jamais  assez  fort  pour  etre 
toujours  le  maitre,  s'il  ne  transforme  sa  force  en  droit,  et 
l'obeissance  en  devoir,"  J  is  as  true  for  Europe  or  America  as 
for  Asia ;  and  religion  is  the  only  power  that  can  work  this 
transformation  in  the  earliest  stages  of  man's  civilization.  It 
was  the  Christian  religion,  the  Christian  church,  and  Chris- 
tian bishops  that  enabled  the  Carolingians  to  organize  Europe 
politically,  and  to  start  the  Teutons  upon  the  path  of  polit- 
ical civilization.2  Prize  as  highly  as  we  may  the  ancient  lib- 
erty of  the  Germans,  there  was  in  it  but  little  organizing 
force.  The  fact  that  the  Saxons,  the  German  race  par  excel- 
lence>  had  made  no  political  progress  from  the  time  when 
Tacitus  wrote  of  them  to  the  period  of  their  incorporation  in 
the  Carolingian  Empire,  is  satisfactory  proof  of  this.  The 
same  religious  forces  enabled  the  Rurics  to  organize  Russia 
and  stand  behind  the  throne  of  the  Czar  to-day,  procuring  for 
it  the  support  and  obedience  of  the  great  masses  of  the  pop- 
ulation.3 The  same  forces  sustained  the  Cerdics  in  the  mak- 
ing of  England.  Dunstan,  Lanfranc  and  Wolsey  were  the 
pillars  of  the  English  monarchy ;  and  the  church  is  still  to- 
day   the    chief   bond  of   unity  between  the  masses  and  the 

1  Du  Contrat  Social,  Livre  I,  Chap.  III. 

2  Waitz,  Deutsche  Verfassungsgeschichte,  Bd.  Ill,  S.  162. 
8  Weber,  Geschichte  des  Mittetalters,  Bd.  I,  S.  757  ff. 


62  The  State. 

throne.1  And  should  we  examine  carefully  into  the  sources 
of  that  readiness  to  obey  law  which  has  characterized  the 
true  American  citizens  of  this  republic,  we  should  without 
doubt  find  ourselves  ultimately  face  to  face  with  the  early 
religious  discipline  of  New  England.2 

The  principle  of  the  historical  genesis  of  the  state  does  not, 
then,  stand  opposed  to  the  doctrine  of  the  divine  origin  of  the 
state,  when  that  doctrine  is  rationally  construed  :  it  includes 
it,  and  makes  it  the  starting-point  in  the  evolution. 

On  the  other  hand,  the  theory  of  the  social  compact,  though 
reconcilable  with  the  principle  of  the  historical  development 
of  the  state,  requires  far  more  modification  in  its  interpreta- 
tion. In  the  first  place,  the  historical  principle  cannot  accept 
this  theory  as  the  starting-point  in  the  evolution  of  the  state. 
The  application  of  this  theory  —  yea,  even  the  conscious 
recognition  of  it  —  presupposes  an  already  highly  developed 
state-life.  It  presupposes  that  the  idea  of  the  state,  with  all 
its  attributes,  is  consciously  present  in  the  minds  of  the  indi- 
viduals proposing  to  constitute  the  state,  and  that  the  dispo- 
sition to  obey  the  law  is  already  universally  established.  Now 
we  know  that  these  conditions  never  exist  in  the  beginning 
of  the  political  development  of  a  people,  but  are  attained  only 
after  the  state  has  made  several  periods  of  its  history.  This 
theory  cannot  therefore  account  for  the  origin  of  the  state : 
its  place  is  far  forward  in  the  evolution  of  the  state.  Its 
application  can  be  conceived  in  changing  the  form  of  the  state 
or  in  planting  the  state  upon  new  territory  by  a  population 
already  politically  educated,  but  not  in  its  primal  creation. 
The  political  historian  can  accept  it  only  as  a  force  in  the 
development  of  the  later  forms  of  the  state,  through  popular 
revolution  or  colonization. 


1  Stubbs,  Constitutional  History  of  England,  Vol.  I,  pp.  236  ff. ;  Bagehot,  The 
English  Constitution,  p.  III. 

2  Bancroft,  History  of  the  United  States,  Vol.  I,  pp.  370  ff.,  C.  E. 


The  Origin  of  the  State.  63 

Under  this  interpretation  it  fits  into  and  harmonizes  with 
the  principle  of  the  historical  development  of  the  state,  but 
under  no  other  interpretation.  It  would  be  utterly  senseless 
to  speak  of  the  state  as  a  product  of  history,  if,  before  it 
came  into  existence,  the  individuals  proposing  to  create  it 
were  already  so  highly  educated  politically  as  to  solve  the 
great  problem  of  sovereignty  by  the  resolution  of  an  original 
convention.  The  solution  of  this  problem  is  the  goal  towards 
which  political  history  is  working.  The  most  advanced  states 
of  the  world  are  to-day  still  occupied  with  it,  and  will  con- 
tinue to  be  until  the  mission  of  man  on  earth  is  fulfilled. 
To  assume  its  complete  solution  at  the  beginning,  as  this 
theory  presupposes,  would  be  either  to  deny  the  law  of  history 
altogether  or  to  inject  into  political  history  the  theological 
doctrine  of  paradise,  fall  and  redemption.  Primal  paradise 
and  redemption  cannot  be  conceived  of,  however,  except  as 
the  immediate  creations  of  Deity.  The  Rousseauist  cannot 
therefore  take  shelter  under  this  doctrine.  He  would  de- 
stroy the  basis  of  his  own  theory,  and  range  himself  with  the 
followers  of  Augustine,  Hildebrand  and  Aquinas. 

Finally,  the  principle  of  the  historical  development  of  the 
state  needs  some  further  explanation,  but  no  modification  or 
qualification.  It  takes  for  its  basis  and  point  of  departure 
human  nature ;  it  distinguishes  in  that  nature  a  universal 
side  and  a  particular  side ;  it  recognizes  the  former  as  the 
state  subjective ;  it  accepts  the  principle  that  the  creator 
of  that  nature  is,  therefore,  the  originator  of  the  subjective 
state,  i.e.  the  political  idea.  But  the  political  scientist  is 
looking  for  the  state  made  objective  in  institutions  and 
laws,  and  this  is  the  product  of  history.  It  may  be  that 
divine  power  is  continually  engaged  upon  this  work  ;  but 
if  so,  it  is  not  through  direct  intervention,  but  by  influence 
upon  human  consciousness  and  human  wills.  We  may, 
then,  without  questioning  the  doctrine  of  the  divine  origin 
of  the  state,  claim  that  the  great  work  of  making  the  sub- 


64  The  State. 

jective  state  objective  in  institutions  and  laws  is,  for  the 
political  scientist,  a  creative  process  which  may  properly  be 
termed  origination.  Man  through  history  has  been  the  sole, 
immediate  force  in  the  accomplishment  of  this.  Our  knowl- 
edge of  the  history  of  the  human  race  does  not,  indeed,  reach 
back  to  the  beginning  of  that  history.  We  know  nothing  of 
the  influences  and  the  conditions  under  which  the  human 
mind  first  awakened  to  the  consciousness  of  the  state,  and 
felt  the  impulse  to  exert  itself  for  the  objective  realization 
of  that  consciousness.  We  are  fully  warranted,  however,  by 
the  status  of  human  society  which  history  first  presents  us,  in 
concluding  that  this  great  light  did  not  come  to  all  at  once. 
The  period  of  barbaric  liberty  and  self-help  permits  and  pro- 
motes the  development  of  the  few  mighty  personalities  and 
their  elevation  to  those  heights  of  superiority  over  their  fel- 
lows which  the  dawn  of  civilization  first  illumines.  These  few 
great  personalities  form  the  nuclei  of  political  organization. 
They  are,  at  first,  priests  rather  than  statesmen.  They  are 
inspired  by  the  belief  that  what  they  behold  in  themselves  is 
divinity.  They  so  represent  it  to  the  masses  of  the  uniniti- 
ated. They  invent  the  means  to  impress  this  belief  upon  the 
masses.  They  establish  a  cult,  and  from  behind  its  power 
and  influence  they  govern  the  people.  The  religious  sanction 
secures  obedience  to  the  laws  of  the  state.  Religion  and  law, 
church  and  state,  are  confused  and  mingled.  They  are  joint 
forces  in  the  period  when  the  human  race  emerges  from  bar- 
barism and  enters  upon  its  course  of  civilization  ;  but  the 
state  is  enveloped  by  the  church,  and  exists  only  by  the 
moral  support  which  it  receives  from  the  church.  Under 
this  form  the  people  are  disciplined  and  educated.  The  con- 
sciousness of  the  state  spreads  wider.  Non-priestly  person- 
alities begin  to  be  touched  by  its  light.  They  are  forced 
thereby  either  to  regard  themselves  as  priests,  or  to  reflect 
that  the  state,  in  its  subjective  character,  is  not  a  special 
revelation  of  divinity.     They  either  seek  entrance  into  the 


The  Origin  of  the  State.  65 

ranks   of   the  priesthood   or   begin  to   dispute  its  exclusive 
political  powers.     The  resistance  of  the  priesthood  to  these 
movements  provokes  the  view  on  the  part  of  the  newly  en- 
lightened that  the  existing  system  is  a  pious  fraud,  and  incites 
them  to  organization  about  one  of  their  number,  as  chief,  for 
the  purpose  of  forcing  the  priesthood  to  a  division  of  power. 
The  struggle  must  not  be  allowed  to  come  to  open  conflict. 
The  newly  initiated  must  not  declare  what  they  have  seen 
to  the  masses,  lest  the  faith  of  the  masses  be  shaken  and  the 
supports  of  law  and  order,  of  civilization  and   progress,   be 
destroyed.     The  two  parties  must  compromise.     The  priests 
must  divide  their  powers  with  the  warriors.     They  must  also 
support  the  rule  of  the  warriors  by  the  power  of  religion. 
The  despotism  results.     In  spite  of  its  ugly  name,  it  marks 
a  great  step  in  advance.1     It  gives  greater  exhibition  of  vio- 
lence, but,  at  the  core,  it  is  far  less  despotic  than  the  theoc- 
racy.    It  leaves  a  larger  sphere  of  individual  activity  unre- 
strained.    It  lightens  the  spiritual  oppression  and  depression 
which  rest  upon  the  souls  of  men,  subject  at  every  step  and 
turn  to  the  immediate  intervention  of  divine  command.     It 
is  a  more  human,  if  not  a  more  humane,  system.     It  tends  to 
prevent  the  respect  and  obedience  for  law  developed  by  the 
theocracy  from  becoming  too  timorous  and  servile.     It  raises 
human  courage.     It  opens  the  way  for  a  more  general  exer- 
tion of  human  reason.     It  makes  it  easier  for  the  conscious-, 
ness  of  the  state  to  spread  to  still  wider   circles,    while   it 
holds  fast  to  what  has  been  won   in    political    piety  during 
the  preceding  era.     It  prepares  the  forces  for  the   terrible 
struggle  of  the  succeeding  era,  to  whose  awakening  and  excit- 
ing power  we  owe  the  spread  of   the  consciousness  of   the 
state  to  the  masses.     The  conflict  in  principle  between  the 
royal  organization  and  the  priesthood  becomes  irrepressible. 
The   king  loses    his    religious    support    in    the  eyes   of   the 

1  Bluntschli,  Lehre  vom  modernen  Stat,  Bd.  I,  S.  392. 


66  The  State. 

masses.  His  official  subordinates  learn  to  defy  him  success- 
fully, and  by  the  help  of  the  priesthood  to  change  their  official 
agencies  into  more  or  less  independent  powers.  It  is  an 
all-around  battle  between  all  the  existent  directing  forces  of 
human  society.  So  far  as  these  forces  are  concerned,  it  is 
not  only  irrepressible,  but  interminable.  They  can  never 
bring  peace  ;  at  best  only  armistice.  A  new  and  still  more 
controlling  force  must  appear.  At  last,  through  the  edu- 
cating power  of  the  terrible  antagonism,  a  large  proportion 
of  the  population  is  awakened  to  the  consciousness  of  the 
state,  and  feels  the  impulse  to  participate  in  the  work  of  its 
objective  realization.  Animated  by  patriotism  and  loyalty, 
by  the  sense  of  human  interests  and  by  rationality,  they 
gather  about  their  king,  as  the  best  existing  nucleus  of  their 
power.  They  give  him  the  strength  to  overcome  both  defiant 
priesthood  and  rebellious  officials.  They  establish  the  objec- 
tive unity  of  the  state.  They  bring  the  absolute  sovereignty 
to  objective  realization.  They  subject  all  individuals  and 
all  associations  of  individuals  to  its  sway.  Apparently  they 
make  the  king  the  state.  Really  they  make  him  but  the 
first  servant  of  the  state.  The  state  is  now  the  people  in 
sovereign  organization.  This  is  an  immense  advance  in  the 
development  of  the  state.  It  is  the  beginning  of  the  modern 
political  era.  Under  its  educating  influence  the  conscious- 
ness of  the  state  spreads  rapidly  to  the  great  mass  of  the 
population,  and  the  idea  of  the  state  becomes  completely 
secularized  and  popularized.  The  doctrine  that  the  people 
in  ultimate  sovereign  organization  are  the  state  becomes  a 
formulated  principle  of  the  schools  and  of  political  science 
and  literature.  The  jurists,  the  publicists  and  the  moral 
philosophers  lead  in  the  evolution  of  the  idea.  The  warriors 
and  the  priests  are  assigned  to  the  second  place.  The  sov- 
ereign people  turn  their  attention  to  the  perfecting  of  their 
own  organization.  They  lay  hands  upon  the  royal  power. 
They  strip  it  of  its  apparent  sovereignty  and  make  it  purely 


The  Origin  of  the  State.  67 

office.  If  it  accommodates  itself  to  the  position,  it  is  allowed 
to  exist ;  if  not,  it  is  cast  aside.  At  last  the  state  knows 
itself  and  is  able  to  take  care  of  itself.  The  fictions,  the 
makeshifts,  the  temporary  supports,  have  done  their  work, 
and  done  it  successfully.  They  are  now  swept  away.  The 
structure  stands  upon  its  own  foundation.  The  state,  the 
realization  of  the  universal  in  man,  in  sovereign  organization 
over  the  particular,  is  at  last  established,  —  the  product  of 
the  progressive  revelation  of  the  human  reason  through 
history. 

Many  are  the  races  of  men  whose  powers  have  been  ex- 
pended in  the  process  of  this  development.  The  torch  of 
civilization  has  been  handed  from  one  to  another,  as  each 
exhausted  bearer  has  ceased  to  be  the  representative  of  the 
world's  progress.  Many  are  the  races,  also,  which  still  wait 
to  be  touched  by  the  dawn  of  this  great  light.  Of  all  the 
races  of  the  world  only  the  Roman  and  the  Teuton  have  real- 
ized the  state  in  its  approximately  pure  and  perfect  character. 
From  them  the  propaganda  must  go  out,  until  the  whole 
human  race  shall  come  to  the  consciousness  of  itself,  shall 
realize  its  universal  spiritual  substance,  and  subject  itself  to 
the  universal  laws  of  its  rationality. 

This,  in  many  words,  is  what  we  mean  by  the  proposition 
that  the  state  is  a  product,  nay,  the  product,  of  history.  It 
contains,  certainly,  a  nobler  conception  of  the  state  in  origin, 
development,  and  ultimate  character,  and  of  the  relation  of 
the  individual  to  the  state,  than  does  any  other  doctrine  or 
theory.  In  its  contemplation,  men  feel  the  impulse  to  heroic 
effort,  rejoice  in  sacrifice,  learn  to  know  true  liberty  and  to 
despise  fear.  If  it  makes  the  state  more  human,  it  makes 
humanity  more  divine. 


68  The  State. 


CHAPTER    III. 


THE    FORMS    OF    STATE. 


There  is  no  topic  of  political  science  concerning  which  a 
more  copious  literature  is  at  hand  than  this.  There  is  none, 
again,  in  regard  to  which  a  less  satisfactory  treatment  has 
been  attained  than  this.  A  careful  student  of  what  has  been 
written  upon  this  subject,  both  in  Europe  and  America, 
will,  I  think,  discover  that  the  cause  of  this  unsatisfactory 
result,  upon  the  part  of  the  European  publicists,  is  the  fact 
that  they  do  not  discriminate  clearly  between  state  and  gov- 
ernment ;  upon  the  part  of  the  American  writers,  that  they 
copy  too  closely  the  European  authors. 

Both  of  these  facts  are  explicable.  In  Europe,  state  and 
government  are  actually  more  or  less  mingled  and  commin- 
gled. The  publicists  are  confused  in  their  reflections  by  the 
confusion  in  the  external  object.  It  will  be  profitable  to 
dwell  upon  this  point  a  moment,  and  inquire  how  this  actual 
condition  of  things  has  come  about,  which  has  exercised  such 
a  troubling  influence  upon  political  science.  I  think  the 
explanation  is  to  be  found  in  the  consequences  of  the  his- 
torical development  of  the  state.  No  great  state  in  Europe, 
except  France,  has  cut  its  history  into  two  distinct  and  sep- 
arate parts  by  revolution,  and  founded  its  existing  institutions 
directly  and  consciously  upon  revolution.  We  may  say  then, 
as  the  rule,  that  in  the  European  states  the  form  of  state 
generated  in  one  period  of  their  history  laps  over  upon  that 
developed  in  the  succeeding  period  or  periods.  A  close  scru- 
tiny of  this  process  will  disclose  the  following  significant  facts, 
viz  ;  that  in  the  transition  from  one  form  of  state  to  another, 


The  Forms  of  State.  69 

the  point  of  sovereignty  moves  from  one  body  to  another, 
and  the  old  sovereign  body,  i.e.  the  old  state,  becomes,   in 
the  new  system,  only  the  government,  or  a  part  of  the  gov- 
ernment.   Take  the  example  of  English  history  after  1066,  to 
make  this  clearer.     First,  the  king  was  the  state  as  well  as 
the  government.     Then  the  nobles  became  the  state,  and  the 
king  became  government  only.     Then  the  commons  became 
the   state,    and    both   king  and    lords    became    but    parts   of 
the   government.     Now  this   change   from    the   old    form   of 
state  to  the  new,  when  it  works  itself  out  gradually  and  im- 
pliedly, so  to  speak,  does  not  mark  off  the  boundary  sharply 
and  exactly  between  the  old  and  the  new  systems.     Naturally 
the  old  state  does  not  perceive  the  change  at  all  or,  at  least, 
not    for  a   long   time,  and    not   until    after   suffering    many 
bitter  experiences.     It  still  expresses  itself  in  the  language 
of   sovereignty.     It  still  struts  about  in  the  purple,  uncon- 
scious that   the  garment  is  now  borrowed.     On  the   other 
hand,  the  new  sovereignty  comes  very  slowly  to  its   organ- 
ization.    Moreover,  it  organizes  itself,  for  the  most  part,  in 
the  government,  and   only  very  imperfectly  outside  of   and 
supreme  over  the  government.     For  a  long  time  it  has  the 
appearance  of  being  only  a  part  of  the  government,  and,  at 
first,  the  less  important  part.     For  a  considerable  time  it  is 
uncertain  where  the  sovereignty  actually  is.     With  such  con- 
ditions and  relations  in  the  objective  political  world,  it  is  not 
strange  that  the  European  publicists  have  failed,  as  yet,  to 
distinguish   clearly  and   sharply  between  state  and  govern- 
ment, nor  that  their  treatment   of   all  problems,  dependent 
for  correct   solution   upon  this    distinction,  is   more  or  less 
confused  and  unsatisfactory. 

In  America,  on  the  contrary,  existing  conditions  and  rela- 
tions are  far  more  favorable  to  the  publicists.  Our  state  is 
but  little  more  than  a  century  old,  and  rests  wholly  and  con- 
sciously upon  a  revolutionary  basis.  The  organization  of  the 
state  existing  previous  to  the  year  1774  was  completely  de- 


7<d  The  State. 

stroyed,  and  did  not  reappear  in  the  succeeding  organization 
as  a  part  of  the  government,  holding  on  to  its  traditions  of 
sovereignty.  We  Americans  have  seen  the  state  organized 
outside  of,  and  supreme  over,  the  government.  We  have, 
therefore,  objective  aids  and  supports  upon  which  to  steady 
our  reflection  and  by  which  to  guide  our  science.  The  reason 
why  the  American  publicists  have  not  written  better  upon  this 
subject  cannot,  therefore,  be  the  lack  of  the  proper  external 
occasions  for  the  excitation  of  thought.  It  is,  it  seems  to 
me,  as  I  have  already  said,  the  fact  that  they  still  copy  too 
closely  the  European  authors,  and  have  not  ventured  to  essay 
independent  work.  America  has  yet  to  develop  her  own 
school  of  publicists  and  her  own  literature  of  political  science. 
Down  to  this  time,  the  two  names  which  stand  highest  in  our 
American  literature  of  political  science  are  Francis  Lieber  and 
Theodore  D.  Woolsey.  The  former  was,  as  everybody  knows, 
a  European,  educated  under  European  institutions,  and  a  refu- 
gee from  their  oppression,  as  he  regarded  it.  The  latter  was 
Lieber's  ardent  admirer,  —  we  might  almost  say  disciple.  It 
is  not  strange  that  they  should  have  suffered  under  the  power 
of  the  old  influences,  and  should  have  confounded,  in  some 
degree  at  least,  state  and  government  in  their  reflections.  The 
new  and  latest  generation  of  American  students  of  political 
science  have  been  most  largely  trained  in  European  universi- 
ties, under  the  direction  of  European  publicists,  again,  and  by 
means  of  European  literature.  It  will  be  an  effort  for  them 
to  make  such  use  of  their  European  science  as  always  to 
gain  advantage.  It  will  be  of  the  greatest  service  to  them  if 
they  can  employ  it  as  a  stepping-stone  to  a  higher  and  more 
independent  point  of  view ;  one  which  will  enable  them  to  win 
scientific  appreciation  of  the  distinctive  lessons  of  our  own 
institutions.  If  they  fail  to  do  this,  however,  we  can  expect 
little  help  from  them  in  the  attainment  of  a  better  and  more 
satisfying  treatment  of  the  topic  of  this  chapter. 

It    is,   therefore,   with    a   good   deal    of   misgiving  that    I 


The  Forms  of  State.  71 

approach  this  part  of  my  subject.  I  know  that  nothing  has, 
as  yet,  been  written  in  regard  to  it  which  has  commanded 
general  assent  from  the  political  scientists.  I  am  myself 
conscious  of  mental  dissatisfaction  with  all  that  has  been 
advanced,  and  I  believe  that  the  cause  of  the  confusion  of 
thought,  clearly  manifest  in  the  different  theories  presented, 
is  what  I  have  above  indicated ;  but  when  I  come  to  the 
task  of  making  clear  and  exact  the  distinction  between  state 
and  government  myself,  I  find  myself  involved  in  the  same 
difficulties  against  which  I  have  just  given  the  word  of  warn- 
ing. The  fact  is,  that  the  organization  of  the  state  outside 
of,  and  supreme  over,  the  government  is,  as  yet,  everywhere 
incomplete ;  and  that  when  we  assign  to  it  this  separate  and 
supreme  position,  we  are,  in  greater  or  less  degree,  confound- 
ing the  subjective  with  the  objective  state,  the  ideal  with  the 
actual  state.  Nevertheless,  I  am  resolved  to  make  the  trial 
upon  this  line ;  content  if,  upon  a  single  point,  I  can  bring  a 
little  more  light  into  this  discussion,  and  make  it  manifest  that 
a  better  organization  of  the  state  outside  of  the  government 
would  be  a  great  advance  in  practical  politics. 

The  great  classic  authority  upon  this  topic  is  Aristotle. 
Every  student  of  political  science  is  acquainted  with  his  noted 
distinction  of  states,  as  to  form,  into  monarchies,  aristocra- 
cies, and  democracies  (iroXneiai).1  Not  every  student  reflects, 
however,  that  the  Greek  states  were  organized  wholly  in  their 
governments ;  i.e.  completely  confounded  with  them.  This  fact 
made  the  question  far  more  simple  than  it  is  at  present.  We 
of  to-day  have  a  double  question  instead  of  a  single  one. 
We  must  determine,  first,  the  forms  of  state,  and  then,  the 
forms  of  government.  It  is  perhaps  natural  that  the  state 
and  its  government  should  harmonize  in  this  respect ;  but  it 
is  not  always  a  fact  that  they  do,  and  it  is  not  always  desira- 
ble that  they  should  completely  coincide  in  form.     It  is  diffi 

1  Polit.  Ill,  4  and  5. 


j 2  The  State. 

cult  to  see  why  the  most  advantageous  political  system,  for 
the  present,  would  not  be  a  democratic  state  with  an  aristo- 
cratic government,  provided  only  the  aristocracy  be  that  of 
real  merit,  and  not  of  artificial  qualities.  If  this  be  not  the 
real  principle  of  the  republican  form  of  government,  then  I 
must  confess  that  I  do  not  know  what  its  principle  is.  Now, 
it  seems  to  me  that  the  Aristotelian  proposition  contains  the 
true  solution  of  the  whole  question  for  the  Hellenic  politics, 
and  for  all  systems  in  which  the  state  and  the  government 
are  identical  ;  and  that  it  is  the  true  and  complete  principle 
of  distinction  in  regard  to  the  forms  of  state,  but  not  of 
government,  in  those  systems  where  state  and  government 
are  not  identical,  but  exist  under  more  or  less  separate  organ- 
ization. I  accept  the  Aristotelian  proposition,  therefore,  as 
to  the  forms  of  state,  and  reserve  the  discussion  of  the  forms 
of  government  to  a  later  part  of  this  work. 

Under  this  modification,  the  principle  of  Aristotle  must  be 
explained  somewhat  differently  from  what  he  himself  intended. 
He  undoubtedly  had  government  in  mind  more  than  state 
when  he  invented  this  classification.  He  spoke  of  monarchy 
as  the  rule  of  one,  of  the  aristocratic  form  as  the  rule  of  the 
minority,  and  of  the  democracy  as  the  rale  of  the  masses.  In 
limiting  his  proposition  strictly  to  the  state,  as  distinguished 
from  the  government,  I  must  define  the  monarchy  to  be  the 
sovereignty  of  a  single  person,  the  aristocracy  to  be  the  sov- 
ereignty of  the  minority,  and  the  democracy  to  be  the  sover- 
eignty of  the  majority.  Von  Mohl  criticises  the  doctrine  of 
Aristotle  as  being  purely  arithmetical,  and  containing  no 
organic  principle.1  If  this  were  a  just  criticism,  it  would  also 
condemn  the  proposition  in  the  modified  form  which  I  have 
imposed  upon  it.  I  think  it  is  not  only  an  unjust,  but  a 
crude  and  careless,  criticism.  Forty-five  years  before  von 
Mohl    published    the    first    edition    of    his    noted    treatise, 

1  Encyklopadie  der  Staatswissenschaften,  S.  1 10. 


The  Forms  of  State.  73 

Schleiermacher  had  demonstrated  the  spiritual  and  organic 
character  of  this  Aristotelian  principle  of  classification.1  The 
numbers  and  proportions  are  used  simply  to  indicate  how 
far  the  consciousness  of  the  state  has  spread  through  the 
population,  and  to  note  the  degree  of  intensity  with  which 
that  consciousness  is  developed  ;  and  the  principle  is,  that 
no  part  of  the  population  in  which  the  consciousness  of  the 
state  is  strongly  developed  can  be  kept  out  of  the  organi- 
zation of  the  state,  and  that,  therefore,  the  number  inspired 
with  this  consciousness  and  participating  in  this  organization 
really  does  determine  the  organic  character  of  the  state. 

Von  Mohl's  own  classification  appears  to  me  confused  and 
fanciful.2  He  distinguishes  the  forms  of  state  into  patri- 
archal, theocratic,  despotic,  classic,  feudal  and  constitutional. 
Now  patriarchal  and  theocratic  states  are  generally  mon- 
archies. All  states  are  despotic  legally.  The  feudal  state  is 
aristocratic.  The  phrase  constitutional  state  {Rechtsstaat)  is 
very  misleading.  Looked  at  from  one  standpoint,  all  states 
are  constitutional  ;  and  from  another,  none.  As  a  term  of 
distinction  the  expression  applies  to  government  rather  than 
to  state.3  The  state  makes  the  constitution,  instead  of  being 
made  by  it,  and  through  it  organizes  a  government  which 
may  act  only  in  accordance  with  the  legal  forms,  and  for  the 
legal  purposes,  prescribed  in  the  constitution.  Evidently  this 
is  what  von  Mohl  means  by  his  "Rechtsstaat."  While  as  to 
his  "  classic  state,"  nothing  definite  can  be  concluded  from 
the  phrase  itself;  the  adjective  is  no  term  of  political  science 
at  all ;  it  belongs  rather  to  the  nomenclature  of  belles-lettres. 
Von  Mohl  concedes  himself  that  the  classic  state  may  be 
either  monarchic,  aristocratic,  or   democratic.4      Then    why 


1  Ueber  die  Begriffe  der  verschiedenen   Staatsformen.  —  Abhandlungen   del 
Berliner  Akademie,  1 8 14. 

2  Encyklopadie  der  Staatswissenschaften,  S.  103  ff. 
8  Von  HoltzendorfT,  Principien  der  Politik,  S.  205. 
4  Encyklopadie  der  Staatswissenschaften,  S.  106. 


74  The  State. 

use  this  term  at  all  as  distinguishing,  in  ultimate  generaliza- 
tion, any  form  of  state  ?     The  author  would  have  been  more 
consistent    had    he    classified    states    into    ancient,    classic, 
mediaeval,  and  modern.      Any  one  can    see,  however,    that 
this  would  be  unscientific  ;    that  it  would  be  a  chronological 
classification,  and  not  one  of  political  science.     In  a  word, 
von  Mohl's  classification  follows  no  one  consistent  principle ; 
its  different  principles  are  not  all  political  ;  and  it  confounds 
state  and  government  again.      His  fundamental  error  is,   I 
think,  to  be  found    in  his  proposition  that  states   differ  in 
their  essence  as  well  as  in  their  form,  and  that  it  is  the  dif- 
ference  in  essence  instead  of  in  form  which  is  to  be    con- 
sidered.1     He  reaches  this  conclusion  from  the  observation 
that  one  state  devotes  its  energies  more  to  the  development 
of  the  religious  life  of  the  people,  another  cultivates   more 
especially  the  aesthetic  life,  another  the  legal  and  practical, 
another  the  military,  etc.     Now  evidently  we  have  here  no 
difference  in  the  essence  of  these  different  states.     The  dis- 
tinction here  remarked  is  in  the  ends   to  be   accomplished. 
The  essence  of  the  state  is  everywhere,  and  at  all  times,  one 
and  the  same,  viz;   sovereignty.     The  difference  is  only  in 
the  form  ;  and  the  difference  in  form  determines,  more  than 
anything  else,  the  end  which  will  be  made  most  prominent 
in  the  activity  of  any  particular  state.     The  monarchic  states 
are  more  likely  to  develop  the  power  of  the  state  ;  the  aristo- 
cratic make  the  creation  of  the  system  of  private  rights  more 
prominent ;  while  the  democratic  rather  pronounce  the  social- 
istic end.     Manifestly  what  von  Mohl  regards  as  a  difference 
in  essence  is  only  a  difference  in  ends,  or  a  difference  in  what 
the  French  and  Germans  call  "politique." 

The  book  above  all  others  from  which  we  are  justified  in 
expecting  clear  treatment  upon  this  topic  is  that  of  the 
noted    Bluntschli,    Lehre   vom    modernen    Stat.      Bluntschli 

1  Encyklopadie  der  Staatswissenschaften,  S.  no. 


The  Forms  of  State.  75 

lived  and  thought  for  many  years  in  Switzerland ;  i.e.  in  a 
European  state  in  which  considerable  headway  has  been 
made  practically  with  the  distinction  between  state  and  gov- 
ernment. Circumstances  were  more  favorable  to  him  than  to 
most  of  the  European  publicists.  But  our  expectation  is  not 
altogether  fulfilled.  He  holds  to  the  general  principle  that 
states  are  to  be  distinguished  into  monarchies,  aristocracies 
and  democracies,  but  undertakes  to  add  a  fourth  form,  which 
he  calls  "Idiokratie."  J  He  defines  the  idiocracy  to  be  a 
state  in  which  the  supreme  ruler  is  considered  to  be  God 
or  some  superhuman  spirit  or  an  idea.  This  appears  to  me 
very  fanciful.  The  person  or  body  of  persons  who  in  last 
resort  interpret  the  will  of  God  or  of  the  superhuman  spirit 
or  the  idea  for  a  given  people,  and  who  give  their  interpre- 
tations the  force  of  law,  constitute  the  state.  It  signifies 
nothing  that  that  person  or  body  of  persons  may  have  pro- 
fessed to  derive  his  or  its  powers,  so  long  as  the  will  of  God 
or  of  the  superhuman  spirit  or  the  principles  of  the  idea 
can  only  be  known  and  legally  formulated  through  him  or  it. 
Political  science  cannot  examine  into  the  truth  or  fiction  of 
such  a  claim.  Its  dictum  is  simply  that  the  highest  human 
power  over  a  given  population  is  the  state,  no  matter  what 
may  be  the  superhuman  support  upon  which  it  may  claim  to 
rest.  We  must,  therefore,  reject  this  new  creation  from  our 
political  science.  It  must  be  relegated  to  the  domain  of 
political  mysticism. 

Bluntschli  very  properly  condemns  the  notion  that  there  is 
a  mixed  form  of  state.2  I  do  not  think,  however,  that  the 
reason  he  advances  for  so  doing  is  satisfactory.  He  holds 
that  one  of  the  elements  in  what  appears  as  the  mixed  form 
always  holds  the  balance  of  power,  and  the  other  elements 
are  really  but  limitations  upon  it.  He  has  here,  again,  cer- 
tainly confounded  state  and  government.     The  state  cannot 

1  Lehre  vom  modernen  Stat,  Bd.  I,  S.  372.  2  Ibid.  S.  372  ff. 


j 6  The  State. 

be  limited,  simply  because  it  is  sovereign;  and  it  does  not 
hold  simply  the  balance  of  power  ;  it  is  the  source  of  all 
power.  The  true  reason  for  the  rejection  of  the  mixed  form 
from  the  classification  is  that  the  state  is  and  must  be  a  unit. 
Its  essence  as  sovereignty  demands  this  ;  and  where  the  state 
is  not  organized  objectively  as  a  unit,  we  have  only  to  say 
that  it  has  not  perfected  its  organization,  that  it  is,  as  the 
Germans  express  it,  im  werden  begriffen,  in  the  process  of 
development.  If  we  examine  carefully  the  so-called  mixed 
form,  we  shall  either  find  that  no  one  of  the  elements,  nor  any 
combination  of  the  elements,  is  the  state ;  or  that  one  of  them 
is  the  state,  and  the  others  are  but  parts  of  the  government. 
Take  for  example  the  English  system.  The  Parliament  as 
government  consists  of  King  or  Queen,  Lords,  and  Commons. 
In  legislation  simply,  the  three  elements  have  equal  power. 
Each  can  legally  initiate  legislation,  and  each  can  veto  abso- 
lutely the  acts  of  the  others.  On  the  other  hand,  the  Parlia- 
ment, as  state,  is  composed  of  but  a  single  body,  the  Commons. 
When  this  body  acts  as  the  state,  the  Lords  and  the  King 
must  obey  ;  for  they  are  not  separate  organizations  of  the 
state,  but  only  parts  of  the  government.  This  view  did  not 
escape  Bluntschli  entirely.  He  declared  that  the  state  must 
be  a  unit  in  its  organization  ;  but  his  adoption  of  the  prin- 
ciple of  the  relation  of  the  government  to  the  governed, 
instead  of  the  principle  of  the  relation  of  sovereign  to  sub- 
ject, as  the  key  to  the  modern  explanation  and  adjustment 
of  the  Aristotelian  proposition,  obscured  his  vision  and  made 
his  treatment  of  the  topic  confused,  at  the  same  time  that 
he  attained  the  correct  result  so  far  as  the  rejection  of  the 
notion  of  the  mixed  form  of  state  is  concerned. 

A  still  more  convincing  proof  that  Bluntschli  confounded 
state  and  government  in  his  reflections  is  the  fact  that  he 
introduces  a  large  number  of  subdivisions  into  his  classifica- 
tion, under  such  titles  as  these :  the  Hellenic  and  old  Ger- 
manic kingship,  the  old  Roman   kingship  and  the  Roman 


The  Forms  of  State.  jj 

imperium,  the  Frankish  kingship  ;  the  feudal  monarchy,  the 
absolute  monarchy,  and  the  constitutional  monarchy ;  the 
Roman  aristocracy,  the  aristocracy  of  birth,  of  wealth,  of 
learning  ;  the  antique  democracy,  the  modern  or  representa- 
tive democracy  (the  republic).  Now  here  are,  in  the  first 
place,  cross-divisions  in  this  classification,  following,  in  some 
cases,  non-political  principles.  For  example,  the  terms  Hel- 
lenic, Roman,  old  German,  and  Frankish  belong  to  the 
nomenclature  of  ethnology,  the  terms  antique  and  modern 
belong  to  that  of  chronology,  while  the  term  feudal  is  more 
economic  than  political.  In  the  second  place,  all  states  are 
absolute,  whether  they  be  monarchic,  aristocratic,  or  demo- 
cratic. His  feudal  monarchy  is  but  the  government  of  an 
aristocratic  state.  His  constitutional  monarchy  is  but  a 
royal  government,  limited,  in  its  powers  and  procedure,  by 
the  state ;  while  the  imperium  is,  in  theory,  a  monarchic 
state  with  monarchic  government ;  but  in  practice  it  is  more 
frequently,  at  least  in  modern  politics,  only  kingly  govern- 
ment over  a  large  territory  and  population.  In  political 
science  we  must  classify  states  upon  a  rigidly  political  prin- 
ciple, and  we  must  always  distinguish  the  state  from  the 
government.  There  is  no  other  way  to  escape  confusion  and 
inconsequence  in  thought. 

Bluntschli  closes  his  discussion  of  this  topic  rather  unex- 
pectedly to  the  reader  by  introducing  a  fifth  state-form,  which 
he  calls  the  compound  state  {Zusammengesetzte  Statsforni)  ; J 
i.e.  the  form  in  which  the  sovereignty  is  divided  between  the 
union  and  the  states  forming  the  same.  This  compound  state 
he  subdivides  into  states  having  colonies  or  vassal  provinces, 
states  in  personal  union,  confederacies,  and  federal  unions. 
This  appears  to  me  to  be  a  continuation  of  the  old  error  of 
confounding  state  and  government.  A  colony  is,  at  the  out- 
set, no  state.     It  is  a  local  government,  with  perhaps  more 

1  Lehre  vom  modernen  Stat,  Bd.  I,  S.  555  ff. 


78  The  State. 

or  less  of  local  autonomy.  It  may  grow  to  contain  in  itself 
the  elements  to  form  a  state,  and  may  become  a  state  by  revo- 
lution or  by  peaceable  severance  from  the  motherland ;  but 
before  this,  there  is  one  simple  state,  and  after  it,  there  are 
two  simple  states,  but  at  no  time  is  there  a  compound  state. 
If  the  motherland  should  so  extend  its  state  organization  as  to 
include  the  colony  as  active  participant  in  the  same,  the  state 
organization  would  still  be  simple  ;  it  would  only  be  widened. 
A  larger  proportion  of  the  population  of  such  a  state  would 
be  thereby  introduced  into  the  sovereign  body.  The  only 
change  which  could  be  effected  in  this  manner,  as  to  the 
form  of  the  state,  would  be  possibly  the  advance  from  mon- 
archy to  aristocracy,  or  from  aristocracy  to  democracy.  The 
sovereignty  would  not  be  divided  between  the  motherland 
and  the  colony,  for  the  sovereignty  is  and  must  be  a  unit. 
It  must  be  wholly  in  the  motherland  or  wholly  in  the  mother- 
land and  colony  as  one  consolidated,  not  compounded,  organi- 
zation. 

The  same  criticism  will  apply  without  modification  to  the 
vassal  province.  Its  separate  organization  is  only  as  govern- 
ment, not  as  state.  If  it  should  become  a  state,  then  it  would 
cease  really  to  be  vassal ;  and  if  any  relation,  other  than  that 
prescribed  by  international  law  and  treaty,  should  remain 
between  it  and  the  former  suzerain,  a  scientific  analysis  will 
demonstrate  that  the  so-called  suzerain  is  now  but  a  part  of 
its  government,  for  the  accomplishment  of  certain  limited 
and  restricted  purposes. 

Again,  two  states  in  personal  union  form  no  compound 
state.  They  do  not  even  form  a  compound  government. 
A  personal  union  of  two  or  more  states  results  when  the 
executive  head  of  the  government  of  one  becomes  the  execu- 
tive head  of  the  government  or  governments  of  the  other 
or  others.  This  person  then  acts  in  two  or  more  entirely 
distinct  capacities.  In  international  congresses,  for  instance, 
he  has  as  many  votes  as  there   are  states  represented   by 


The  Forms  of  State.  79 

him.1  The  fact  that  two  or  more  states  make  use  of  the  same 
person,  or  even  of  the  same  institution,  in  their  governmental 
organization,  does  not  make  these  states  a  compound  state. 
Its  influence  towards  the  consolidation  of  the  states  is  favor- 
able ;  but  that  is  another  thing. 

Again,  the  confederacy  is  no  compound  state.  The  states 
forming  the  same  remain  separate,  simple  states.  The  con- 
federate organization  has  no  power  to  bind  any  one  of  the 
states  entering  into  the  same  without  its  own  separate  and 
express  consent ;  i.e.  it  has  no  sovereignty ;  it  is  no  state  at 
all ;  it  is  only  government.  The  confederate  constitution  is  a 
treaty,  an  interstate  agreement.  It  differs  from  the  usual 
treaty  in  two  points,  viz  ;  it  creates  a  sort  of  governmental 
organization,  or  rather  a  council  of  advisers,  and  contains  the 
general  agreement  on  the  part  of  the  different  states  to  exe- 
cute the  recommendations  of  this  body;  and  it  has,  generally, 
no  limitation  as  to  duration.  These  are  circumstances  favor- 
able to  the  consolidation  of  the  separate  states  into  one  state. 
The  very  fact  of  the  confederacy  is  the  best  of  proof  that 
there  are  natural  forces  at  work  conspiring  to  secure  such 
consolidation.  After  this  consolidation  shall  have  been 
accomplished,  however,  there  is  no  compound  state  as  the 
result  ;  i.e.  no  state  in  which  the  sovereignty  is  partly  in  the 
new  state  and  partly  in  the  old  states,  but  there  is  a  simple 
state  of  wider  organization. 

This  last  reflection  leads  to  the  consideration  of  the  final 
species  of  compound  state  cited  by  Bluntschli,  viz;  the 
federal.  I  take  the  ground  here,  again,  that  this  is  no  com- 
pound state ;  that  there  is  no  such  thing  as  a  federal  state ; 
and  that  what  is  really  meant  by  the  phrase  is  a  dual  system 
of  government  under  a  common  sovereignty.  If  we  put  this 
case  to  a  rigid  scientific  test,  we  shall  find  that  the  so-called 
federal  state  is  a  state  which  extends  over  a  territory  and 

1  Bluntschli,  Das  moderne  Volkerrecht,  S.  92. 


80  The  State. 

comprehends  a  population  previously  divided  into  several 
independent  states;  that  physical,  ethnical,  economic,  and 
social  harmony,  conspiring  to  produce  political  unity,  existed 
throughout  the  several  states ;  that  consolidation  was  resisted 
by  the  governments  of  some  of  the  states,  possibly  by  some 
of  the  states  themselves;  that,  consequently,  the  consolida- 
tion was  produced  by  violence,  and  the  first  organization  of 
the  new  state  was  therefore  revolutionary,  i.e.  was  not 
created  according  to  the  prescripts  of  existing  law  ;  that  the 
new  state  under  its  revolutionary  organization  has  framed  a 
constitution  in  which  it  has  constructed  a  government  for 
the  general  affairs  of  the  whole  state,  and  has  left  to  the 
old  bodies,  whose  former  sovereignty  it  has  destroyed,  the 
residuary  powers  of  government,  to  be  exercised  by  them, 
under  certain  general  limitations,  as  they  will,  so  long  as 
the  new  state  may  not  see  fit  to  make  other  disposition 
in  reference  to  them.  Exactly  the  same  result,  regarding 
the  position  of  the  old  states  in  the  new  system,  is  effected 
as  in  the  case  of  the  transition  of  the  sovereignty  from  the 
monarch  to  the  aristocracy,  and  from  the  aristocracy  to  the 
democracy,  when  the  preceding  form  in  which  the  sovereignty 
was  organized  is  not  entirely  abolished ;  i.e.  the  old  states 
become  parts  of  the  government  in  the  new  state,  and 
nothing  more.  It  is  no  longer  proper  to  call  them  states  at 
all.  It  is  in  fact  only  a  title  of  honor,  without  any  corre- 
sponding substance.  Confusion  and  inertia  of  thought  support 
it  for  a  long  time.  When  new  things  proceed  out  of  old  ones, 
it  is  a  long  time  before  we  invent  the  new  names  rightly 
describing  the  new  character. 

It  is  possible,  of  course,  that  several  states  may  consolidate 
to  form  a  single  state,  with  a  federal  or  dual  system  of  gov- 
ernment, peaceably  and  in  accordance  with  the  forms  of 
existing  law.  It  is  also  possible  that  a  single  state  may,  as  a 
matter  of  fact,  construct  its  governmental  system  upon  the 
federal  or  dual  principle.    Neither  of  these  processes,  however, 


The  Forms  of  State.  81 

is  very  likely  to  be  followed.  It  is  rather  fortunate  for  politi- 
cal science  that  they  are  not,  at  least  that  the  first  is  not. 
Should  it  be  followed,  it  would  be  far  more  difficult  to  clear 
away  the  appearances  of  the  confederacy  from  the  new  state. 
In  the  latter  case  this  difficulty  would  not,  indeed,  be  felt ;  but 
a  state  which  has  already  attained  a  consolidated  government 
has  probably  passed  beyond  that  period  of  its  political  civiliza- 
tion which  requires  the  dual  form  ;  and  the  re-establishment 
of  it  would,  therefore,  be  rather  an  evidence  of  retrogression 
in  social  conditions. 

My  contention  is,  therefore,  that  the  classification  of  states, 
as  to  form,  into  monarchies,  aristocracies,  and  democracies,  is 
both  correct  and  exhaustive  ;  that  no  additional  forms  can  be 
made  out  of  a  combination  of  these,  or  out  of  a  union  of  sev- 
eral states ;  and  that  the  notion  that  there  can  be  proceeds 
from  the  confounding  of  state  and  government  in  the  treat- 
ment of  the  subject. 

There  remains  now  but  a  single  point  further  to  be  touched 
under  this  topic.  What  we  call  the  modern  states  are  those 
based  upon  the  principle  of  popular  sovereignty ;  i.e.  they  are 
democracies.  Not  all  of  them  appear  to  be  such,  but  a  close 
scrutiny  of  the  facts  will  reveal  the  truth  of  the  proposition 
that  they  are.  The  reason  of  the  deceptive  appearance  in 
such  cases  will  be  found  to  be  the  fact  that  the  state 
has  but  recently  taken  on  its  new  form,  and  has  not  per- 
fected its  organization  ;  while  the  old  state-form,  remaining 
as  government,  is  still  clad  in  the  habiliments  of  sovereignty, 
shabby  and  threadbare  perhaps,  but  still  recognizable.  It 
will  be  highly  instructive  to  consider,  for  a  moment,  the  social 
conditions  which  precede,  and  make  possible,  the  existence 
of  the  democratic  state.  They  may  be  expressed  in  a  single 
phrase,  viz;  national  harmony.  There  can  be  no  demo- 
cratic state  unless  the  mass  of  the  population  of  a  given 
state  shall  have  attained  a  consensus  of  opinion  in  reference 
to  rights  and  wrongs,  in  reference  to  government  and  liberty. 


82  The  State. 

This  implies,  in  the  first  place,  that  they  shall  understand 
each  other  ;  i.e.  that  they  shall  have  a  common  language  and 
a  common  psychologic  standpoint  and  habit.  It  implies,  in 
the  second  place,  that  they  shall  have  a  common  interest, 
in  greater  or  less  degree,  over  against  the  populations  of  other 
states.  It  implies,  finally,  that  they  shall  have  risen,  in  their 
mental  development,  to  the  consciousness  of  the  state,  in  its 
essence,  means  and  purposes ;  that  is,  the  democratic  state 
must  be  a  national  state,  and  the  state  whose  population  has 
become  truly  national  will  inevitably  become  democratic. 
There  is  a  natural  and  an  indissoluble  connection  between 
this  condition  of  society  and  this  form  of  state.  It  is  this 
connection  which  has  led  to  the  interchangeable  use  of  the 
terms  state  and  nation.  We  must  not  forget,  however,  that 
they  belong  primarily  to  different  sciences,  and  should  not 
be  used  interchangeably  without  explanatory  qualifications. 


The  Ends  of  the  State.  83 


CHAPTER   IV. 

THE    ENDS    OF    THE    STATE. 

Upon  this  topic,  also,  we  have  a  most  copious  literature. 
It  is,  however,  exceedingly  inharmonious,  and  generally  un- 
satisfactory. The  most  elaborate  and  advanced  treatment  of 
the  subject  which  has  yet  appeared  is  to  be  found  in  von 
Holtzendorff's  Principien  der  Politik.  A  critical  analysis 
of  his  propositions  will,  however,  reveal  the  fact  that  he  does 
not  clearly  distinguish  state  from  government,  and  that  he 
loses  sight  of  the  ultimate  end  of  the  state  in  contemplat- 
ing the  immediate  ends,  which,  from  the  standpoint  of  the 
ultimate  end,  are  but  means.  The  great  value  of  his  work 
consists  in  the  fact  that  he  points  out  the  stages  of  advance 
in  the  attainment  of  the  ultimate  end,  and  warns  against 
attempting  to  take  the  third  step  before  the  first  and  second 
shall  have  been  successfully  completed.  After  an  exhaustive- 
review  and  criticism  of  the  theories  which  have  prevailed,  at 
different  periods  of  history,  in  the  literature  of  this  topic, 
von  Holtzendorff  advances  his  own  doctrine  under  the  title 
of  the  actual  purposes  of  the  state  (die  realen  Staatszwecke)} 
He  holds  that  the  state  has  a  triple  end,  the  elements  of 
which  are  interdependent  and  harmonious.  Of  these  the  first 
is  power  (der  nationale  Machtzweck).  The  state  must  consti- 
tute itself  in  sufficient  power  to  preserve  its  existence  and 
proper  advantage  against  other  states,  and  to  give  itself  a  uni- 
versally commanding  position  over  against  its  own  subjects, 
either  as  individuals  or  associations  of  individuals.  The  second 

1  Seite,  219  ff. 


84  The  State. 

is  individual  liberty  (der  individuelle  Rechtszweck).  The  state 
must  lay  out  a  realm  of  free  action  for  the  individual,  and 
not  only  defend  it  against  violation  from  every  other  quarter, 
but  hold  it  sacred  against  encroachment  by  itself.  And  the 
third  is  the  general  welfare  (der  gcsellscliaftlicJie  Ciilturzweck). 
The  state  must  stand  over  against  the  private  associations 
and  combinations  of  its  subjects  as  independent  power,  pre- 
venting any  one  or  more  of  them  from  seizing  and  exercising 
the  power  of  the  state  against  the  others.  It  must  prevent 
the  rivalries  between  different  associations  from  coming  to  a 
breach  of  the  peace.  It  must  protect  the  rights  of  the  indi- 
vidual member  of  any  association  against  the  tyranny  of  the 
association.  It  must  hold  all  associations  to  their  primary 
public  purpose,  if  such  they  have,  and  aid  them,  if  strictly 
necessary,  in  its  accomplishment.  Finally,  it  must  direct  the 
education  of  its  subjects. 

This  appears  to  me  to  be  a  confused  and  an  incomplete 
statement  of  the  ends  of  the  state.  In  the  first  place,  it  is 
confused.  Why,  for  example,  should  the  duty  of  the  state 
to  hold  itself  in  a  position  of  independent  power  over  against 
the  attempts  of  any  association  to  seize  and  employ  the  power 
of  the  state  for  its  own  advantage,  or  to  keep  the  peace  of 
the  public  in  the  midst  of  the  rivalries  of  associations,  be 
classed  under  the  end  of  the  general  welfare,  rather  than  under 
the  end  of  power  ?  Why,  again,  should  the  duty  of  the  state 
to  protect  the  rights  of  an  individual  member  of  an  association 
against  the  tyranny  of  the  association  be  classed  under  the  end 
of  the  general  welfare  rather  than  under  the  end  of  individual 
liberty  ?  In  the  second  place,  the  proposition  is  incomplete.  It 
takes  no  account  of  the  world-purpose  of  the  state.  It  makes 
no  place  in  its  political  science  for  the  body  of  customs  and 
agreements  which  we  term,  rather  prematurely  indeed,  inter- 
national law.  While  Hegel,  in  his  doctrine  that  morality 
(Sittlichkeit)  is  the  end  of  the  state,  lost  sight  of  the  proxi- 
mate ends  in  the  ultimate  end,  von  Holtzendorff,  on  the  other 


The  Ends  of  the  State.  85 

hand,  loses  sight  of  the  ultimate  end  in  the  proximate  ends. 
Moreover,  neither  he,  nor  any  other  publicist  who  has  yet 
written,  indicates  any  other  means  employed  by  the  state  in 
the  attainment  of  its  ends  than  government.  This  topic 
requires,  therefore,  a  new  and  an  independent  examination 
and  statement ;  and  the  fundamental  principle  of  the  new 
proposition  must  be  that  it  shall  include  both  the  proximate 
and  ultimate  ends  of  the  state,  in  their  proper  relation,  and 
shall  distinguish  clearly  state  from  government  in  the  account 
of  the  forces  employed  in  the  attainment  of  these  ends.  Un- 
less these  requirements  be  fulfilled,  no  advance  in  the  better 
comprehension  of  this  cardinal  subject  can  be  hoped  for. 

First,  then,  as  to  state  ends.  An  exhaustive  examination 
of  this  subject  will  reveal  the  fact  that  there  are  three  natural 
points  of  division.  There  is  a  primary,  a  secondary,  and  an 
ultimate  purpose  of  the  state ;  and,  proceeding  from  the  pri- 
mary to  the  ultimate,  the  one  end  or  class  of  ends  is  means 
to  the  attainment  of  the  next  following.  Let  us  regard  the 
ultimate  end  first.  This  is  the  universal  human  purpose  of 
the  state.  We  may  call  it  the  perfection  of  humanity ;  the 
civilization  of  the  world;  the  perfect  development  of  the 
human  reason,  and  its  attainment  to  universal  command  over 
individualism  ;  the  apotheosis  of  man.  This  end  is  wholly 
spiritual ;  and  in  it  mankind,  as  spirit,  triumphs  over  all  fleshly 
weakness,  error,  and  sin.  This  is  what  Hegel  meant  by  his 
doctrine  that  morality  {Sittlichkeit)  is  the  end  of  the  state ; 
and  the  criticism  that  this  doctrine  confounds  the  domain  of 
the  individual  with  that  of  the  state,  so  freely  indulged  in  by 
most  publicists,  is  a  crude  view,  a  narrow  conception  of  the 
meaning  of  the  term  morality.  The  true  criticism  is,  that 
Hegel  takes  the  third  step  without  resting  upon  the  first  and 
second,  and  mankind  is  not  strong  enough  of  foot  to  follow 
him. 

The  state  cannot,  however,  be  organized  from  the  beginning 
as  world-state.     Mankind  cannot  yet  act  through  so  extended 


86  The  State. 

and  ponderous  an  organization,  and  many  must  be  the  centu- 
ries, and  probably  cycles,  before  it  can.  Mankind  must  first 
be  organized  politically  by  portions,  before  it  can  be  organ- 
ized as  a  whole.  I  have  already  pointed  out  the  natural  con- 
ditions and  forces  which  direct  the  political  apportionment  of 
mankind.  I  have  demonstrated  that  they  work  towards  the 
establishment  of  the  national  state.  The  national  state  is  the 
most  perfect  organ  which  has  as  yet  been  attained  in  the  civil- 
ization of  the  world  for  the  interpretation  of  the  human  con- 
sciousness of  right.  It  furnishes  the  best  vantage-ground  as 
yet  reached  for  the  contemplation  of  the  purpose  of  the  sojourn 
of  mankind  upon  earth.  The  national  state  must  be  developed 
everywhere  before  the  world-state  can  appear.  Therefore  I 
would  say  that  the  secondary  purpose  of  the  state  is  the 
perfecting  of  its  nationality,  the  development  of  the  peculiar 
principle  of  its  nationality.  I  think  this  is  what  Bluntschli 
means  when  he  says  the  end  of  the  state  is  the  development 
of  the  popular  genius,  the  perfection  of  the  popular  life.1 

But  now,  how  shall  the  state  accomplish  this  end  ?  The 
answer  to  this  question  gives  us  finally  the  proximate  ends 
of  the  state.  These  are  government  and  liberty.  The  pri- 
mary activity  of  the  state  must  be  directed  to  the  creation  and 
the  perfecting  of  these.  When  this  shall  have  been  fairly 
accomplished,  it  may  then,  through  these  as  means,  work  out 
the  national  civilization,  and  then  the  civilization  of  the  world. 
First  of  all,  the  state  must  establish  the  reign  of  peace  and 
of  law ;  i.e.  it  must  establish  government,  and  vest  it  with 
sufficient  power  to  defend  the  state  against  external  attack 
or  internal  disorder.  This  is  the  first  step  out  of  barbarism, 
and  until  it  shall  have  been  substantially  taken  every  other 
consideration  must  remain  in  abeyance.  If  it  be  necessary 
that  the  whole  power  of  the  state  shall  be  exercised  by  the 
government  in  order  to  secure  this  result,  there  should  be  no 

1  "  Entvvickelung  der  Volksanlage,  Vervollkommnung  des  Volkslebens."  Lehre 
vom  modernen  Stat,  Bd.  I,  S.  361. 


The  Ends  of  the  State.  8y 

hesitation  in  authorizing  or  approving  it.  This  latter  status 
must  not,  however,  be  regarded  as  permanent.  It  cannot 
secure  the  development  of  the  national  genius.  If  continued 
beyond  the  period  of  strict  necessity,  it  will  rather  suppress 
and  smother  that  genius.  So  soon  as,  through  its  disciplinary 
influence,  the  disposition  to  obey  law  and  observe  order  shall 
have  been  established,  it  must,  therefore,  suffer  change.  The 
state  must  then  address  itself  to  the  establishment  of  its  sys- 
tem of  individual  liberty.  It  must  mark  out,  in  its  constitu- 
tion, a  sphere  of  individual  autonomy;  and  it  must  command 
the  government  both  to  refrain  from  encroachment  thereon 
itself  and  to  repel  encroachment  from  every  other  quarter. 
At  first  this  domain  must  necessarily  be  narrow,  and  the 
subjects  of  the  state  be  permitted  to  act  therein  only  as 
separate  individuals.  As  the  people  of  the  state  advance 
in  civilization,  the  domain  of  liberty  must  be  widened,  and 
individuals  permitted  to  form  private  combinations  and  asso- 
ciations for  the  accomplishment  of  purposes  which  are  beyond 
the  powers  of  the  single  individual,  and  which  could  be  other- 
wise fulfilled  only  by  the  power  of  the  government.  Of  course 
the  state  must  define  with  distinctness  the  sphere  of  free 
action  accorded  to  these  associations,  and  vest  government 
with  such  control  over  them  as  will  prevent  them  from  an 
abuse  of  their  privileges  and  powers  and  hold  them  to  the 
fulfilment  of  their  public  purpose.  It  may,  also,  be  good 
policy  for  the  state  to  aid  them  in  the  accomplishment  of 
work  which  they  could  not,  without  such  aid,  perform,  in- 
stead of  authorizing  the  government  itself  to  undertake  and 
execute  such  enterprises.  This  all  signifies,  however,  only  a 
readjustment  by  the  state,  from  time  to  time,  of  the  relation 
of  government  to  liberty,  and  does  not  require  the  conception 
of  a  third  immediate  end  of  the  state.  In  the  modern  age,  the 
state  works,  thus,  through  government  and  liberty,  and  ac- 
complishes many  of  its  fairest  and  most  important  results  for 
civilization  through  the  latter.     It  is  often  said  that  the  state 


88  The  State. 

does  nothing  for  certain  causes,  as,  for  instance,  religion  or 
the  higher  education,  when  the  government  does  not  exercise 
its  powers  in  their  behalf.  This  does  not  at  all  follow.  If 
the  state  guarantees  the  liberty  of  conscience  and  of  thought 
and  expression,  and  permits  the  association  of  individuals  for 
the  purposes  of  religion  and  education,  and  protects  such 
associations  in  the  exercise  of  their  rights,  it  does  a  vast  deal 
for  religion  and  education ;  vastly  more,  under  certain  social 
conditions,  than  if  it  should  authorize  the  government  to 
interfere  in  these  domains.  The  confusion  of  thought  upon 
this  subject  arises  from  the  erroneous  assumptions  that  the 
state  does  nothing  except  what  it  does  through  the  govern- 
ment ;  that  the  state  is  not  the  creator  of  liberty ;  that  liberty 
is  natural  right,  and  that  the  state  only  imposes  a  certain 
necessary  restraint  upon  the  same.  This  doctrine  of  natural 
rights  or  anti-  or  extra-state  rights,  which  led  to  the  revolu- 
tions of  the  eighteenth  century,  still  exercises  a  sort  of  tradi- 
tional power  over  popular  thinking  ;  but  the  publicists  and  the 
jurists  have,  most  largely,  abandoned  it  as  unscientific,  erro- 
neous and  harmful.  The  theory  did  its  practical  work  when 
the  state  was  a  single  person,  or  a  few  persons,  indistinguish- 
able from  the  government,  and,  in  its  formulation  of  rights, 
was  acting  in  utter  disregard  of  the  popular  ethical  feeling. 
Where  the  state  is  the  people  in  ultimate  organization,  the 
theory  can  only  mean  that  the  state  should  act  rationally 
in  its  construction  of  the  principles  of  liberty ;  but  of  their 
rationality,  the  state,  again,  is  the  final  interpreter.  In  fact, 
this  is  the  only  scientific  value  which  the  proposition  ever  had. 
There  never  was,  and  there  never  can  be,  any  liberty  upon 
this  earth  and  among  human  beings  outside  of  state  organi- 
zation. Barbaric  self-help  produces  tyranny  and  slavery,  and 
has  nothing  in  common  with  the  self-help  created  by  the 
state  and  controlled  by  law.  Mankind  does  not  begin  with 
liberty.  Mankind  acquires  liberty  through  civilization.  Lib- 
erty is  as  truly  a  creation  of  the  state  as  is  government ;  and 


The  Ends  of  the  State.  89 

the  higher  the  people  of  the  state  rise  in  civilization,  the 
more  will  the  state  expand  the  domain  of  private  rights,  and 
through  them  accomplish  the  more  spiritual  as  well  as  the 
more  material  ends  of  civilization ;  until,  at  last,  law  and 
liberty  will  be  seen  to  be  harmonious,  both  in  principle  and 
practice. 

These,  then,  in  historical  order,  are  the  ends  of  state : 
first,  the  organization  of  government  and  of  liberty,  so  as  to 
give  the  highest  possible  power  to  the  government  consistent 
with  the  highest  possible  freedom  in  the  individual  ;  to  the 
end,  secondly,  that  the  national  genius  of  the  different  states 
may  be  developed  and  perfected  and  made  objective  in  cus- 
toms, laws,  and  institutions  ;  from  the  standpoints  furnished 
by  which,  finally,  the  world's  civilization  may  be  surveyed 
upon  all  sides,  mapped  out,  traversed,  made  known  and  real- 
ized. This  proposition  contains  a  plan  for  every  appearance 
and  product  of  human  history ;  for  private  law  and  internal 
public  law,  for  the  law  between  nations  and  the  law  of  nations, 
for  war  and  for  peace,  for  national  exclusiveness  and  universal 
intercourse.  Take  these  ends  in  their  historical  order,  and 
pursue  them  with  the  natural  means,  and  mankind  will  attain 
them  all,  each  in  its  proper  time.  But  this  order  cannot  be 
successfully  reversed,  either  in  part  or  whole.  The  state 
which  attempts  to  realize  liberty  before  government,  or  the 
world-order  before  the  national-order,  will  find  itself  imme- 
diately threatened  with  dissolution  and  anarchy.  It  will  be 
compelled  to  begin  de  novo,  and  to  do  things  in  the  manner 
and  sequence  which  both  nature  and  history  prescribe. 


Book  III. 

THE  FORMATION  OF  THE  CONSTITUTIONS  OF  GREAT  BRIT- 
AIN,    THE    UNITED  STATES,    GERMANY,  AND  FRANCE. 

It  may  appear,  at  first  thought,  a  little  surprising  that 
I  should  treat  of  the  topic  of  this  book  under  the  part  of  my 
work  entitled  Political  Science,  instead  of  under  the  part 
assigned  to  Constitutional  Law.  The  second  thought,  how- 
ever, will  reveal  the  reason.  The  formation  of  a  constitution 
seldom  proceeds  according  to  the  existing  forms  of  law. 
Historical  and  revolutionary  forces  are  the  more  prominent 
and  important  factors  in  the  work.  These  cannot  be  dealt 
with  through  juristic  methods.  If  it  should  be  attempted, 
erroneous  and  sometimes  dangerous  results  will  be  reached. 
The  constitutions  of  which  I  propose  to  treat  are  not  excep- 
tions to  this  order  of  things.  They  are  all  capital  examples 
of  it.  I  wish  to  impress  this  fact  very  vividly  upon  the  minds 
of  my  readers ;  and  therefore  I  take  it  into  account  in  my 
classification,  as  well  as  in  my  treatment. 

This  is  also  the  place  for  me  to  explain  why,  in  my  treat- 
ment of  comparative  constitutional  law,  I  select  the  consti- 
tutions of  Great  Britain,  the  United  States,  Germany,  and 
France,  and  limit  myself  thereto.  The  reasons  are  many 
and  obvious.  In  the  first  place,  my  space  is  limited.  My 
work  is  to  be  included  in  a  single  volume,  or  at  most  in  two 
volumes.  In  the  second  place,  my  treatment  is  to  be  sys- 
tematic, not  encyclopaedic.  In  the  third  place,  these  are 
the  most  important  states  of  the  world.  Finally,  these  con- 
stitutions represent  substantially  all  the  species  of  constitu- 
tionalism which  have  as  yet  been  developed.     If  any  general 

90 


The  Constitution  of  Great  Britain.  91 

principles  of  public  law  are  to  be  derived  from  a  comparison 
of  the  provisions  of  the  constitutions  of  different  states,  surely 
they  will  be  more  trustworthy  if  we  exclude  the  less  perfect 
systems  from  the  generalization,  disregard  the  less  important 
states,  and  pass  by  those  species  which  are  not  typical. 


CHAPTER    I. 

THE    FORMATION    OF    THE    CONSTITUTION    OF    GREAT    BRITAIN. 

This  constitution  has  been  regarded  as  the  historical  con- 
stitution par  excellence.  But  all  constitutions  are  historical. 
It  has  been  termed  an  unwritten  constitution.  But  it  is,  in 
large  part,  written ;  and  no  one  of  the  four  which  we  are  to 
consider  is  wholly  written.  It  is  sometimes  said  that  it 
differs  from  the  others  in  not  being  a  revolutionary  product. 
But  it  is  largely  a  product  of  revolution.  In  what  respects, 
then,  does  it  have  a  distinctive  character,  as  to  its  formation, 
when  compared  with  the  others  ?  It  seems  to  me  in  three 
respects.  First,  it  is  more  largely  unwritten  than  the  others ; 
seconds  what  is  written  is  scattered  through  different  acts 
instead  of  being  contained  in  a  single  instrument ;  and  third, 
the  revolutions  which  have  attended  its  formation  have  not 
been,  perhaps,  so  violent  as  in  the  cases  of  the  others.  In 
a  word,  the  difference  between  the  British  constitution  and 
the  other  three  in  the  matter  of  formation  is  not  at  all 
so  great  as  has  been  usually  supposed. 

Moreover,  this  constitution  has  been  represented  as  being 
very  ancient  when  compared  with  the  others.  In  my  view 
this  is  also  a  mistake.  I  contend  that  the  present  constitu- 
tion of  Great  Britain  did  not  exist  before  the  year  1832. 
Very  nearly  all  of  its  elements  had  been  developed  before 
that  date ;  but  the  relation  in  which  these  organs  now  stand 


92  Formation  of  the  Constitutions. 

to  each  other  is  altogether  different  from  what  it  was  before 
1832  ;  and  the  relation  of  the  governmental  organs  to  each 
other  and  to  the  state  is  what  determines,  more  than  any- 
thing else,  the  character  of  a  constitution.  I  contend,  further- 
more, that  the  change  wrought  in  the  British  constitution  in 
the  year  1832  was  a  revolutionary  procedure ;  i.e.  it  did  not 
proceed  according  to  the  provisions  of  law  existing  and  in 
force  at  that  time.  I  am  aware  that  this  is  a  somewhat 
unusual  statement,  and  feel,  therefore,  under  obligation  to 
substantiate  it  by  explanation  and  proof. 

I  consider  that,  since  the  consolidation  of  England  by  the 
Norman  Kings,  there  have  been  three  great  revolutions  in 
the  political  system  of  Great  Britain.  It  is  difficult  to  assign 
an  exact  date  to  either  of  these.  If,  however,  I  must  give 
dates,  I  would  designate  the  years  12 15,  1485,  and  1832. 
The  first  of  these  marks  roughly  the  period  when  the  British 
state  progressed  from  its  monarchic  to  its  aristocratic  consti- 
tution. The  Barons  organized  themselves  in  the  confedera- 
tion of  St.  Edmunds  and  in  the  Parliament  at  Runnymede,1 
framed  a  constitution  of  liberties,  and  forced  the  same  upon 
the  King ;  i.e.  the  aristocracy  seized  the  sovereign  power, 
became  the  state,  whereas,  before  this,  the  King  had  held 
the  sovereign  power,  had  been  the  state  as  well  as  the 
government.  They  did  not  abolish  the  kingship,  but  they 
reduced  it  from  the  position  of  sovereign  state  to  limited 
government.  The  King  himself  recognized  this  fact  in  his 
angry  declaration  concerning  the  council  of  barons  chosen 
by  the  whole  body  to  compel  him  to  observe  the  consti- 
tution. He  said :  "  They  have  given  me  four-and-twenty 
over-kings."2  It  may  be  said  that  as  the  King  assented 
to  this  constitution,  it  was  established  through  the  forms  of 
existing  legality ;  but  this  would  be  a  very  extreme  use  of 
legal  fiction.     The  only  legal  form  of  consent  which  existed 

1  Stubbs,  Constitutional  History  of  England,  Vol.  I,  pp.  528  ff. 
a  Green,  History  of  the  English  People,  Vol.  I,  p.  248. 


The  Constitution  of  Great  Britain.  93 

or  could  exist  when  the  King  was  sovereign  was  his  free  con- 
sent, and  the  only  kind  of  limitation  which  he  could  suffer 
was  self-limitation,  which  might  at  pleasure  be  thrown  off. 
No  historian  pretends  that  the  constitution  called  Magna 
Carta  was  secured  in  this  manner  or  existed  under  this  con- 
dition.1 The  King  was  forced  to  accept  it  and  forced  to  keep 
it ;  and  it  was  a  good  half-century  before  he  and  his  succes- 
sors ceased  to  struggle  against  it  as  a  violation  of  the  royal 
power.  Here  then  was  a  revolution  in  the  English  state, 
both  in  substance  and  in  form.  The  next  two  and  a  half 
centuries  were  occupied  in  the  perfection  and  adjustment 
of  the  institutions  of  state  and  government  on  the  new 
basis. 

By  the  middle  of  the  fifteenth  century  the  actual  power 
of  the  state  had  passed  from  the  aristocracy  to  the  people. 
It  remained  now  for  the  people  to  organize  themselves  and 
seize  the  sovereignty.  Nominally  they  were  organized  in 
the  House  of  Commons,  but  really  they  were  not.  The 
House  of  Commons  was  then  but  a  kind  of  overflow-meeting 
of  the  House  of  Lords.  The  people  were  not  yet  far  enough 
advanced  in  the  development  of  their  political  consciousness 
to  create  an  entirely  independent  organization.  An  existing 
institution  must  furnish  them  the  nucleus.  They  were 
deeply  conscious  of  their  hostility  to  the  aristocracy.  There 
remained,  then,  only  the  King.  He,  too,  was  hostile  to  the 
aristocracy.  Through  their  common  enemy,  the  King  and 
the  people  were  referred  to  each  other.  In  the  organization 
which  followed,  called  in  political  history  the  absolute  mon- 
archy of  the  Tudors,  the  people  were,  in  reality,  the  sov- 
ereign, the  state,  but,  apparently,  the  King  was  the  state. 
England  under  the  Tudors  was  a  democratic  political  soci- 
ety under  monarchic  government.  The  absolute  monarchy  in 
this  sense  is  certainly  a  step  in  advance  from  the  aristocratic 

1  Stubbs,  Constitutional  History  of  England,  Vol.  I,  p.  543. 


94  Formation  of  the  Constitutions. 

state,  but  the  foothold  attained  is  very  uncertain.  It  de- 
pends almost  entirely  upon  the  insight  and  disposition  of  the 
monarch  as  to  whether  a  popular  policy  will  be  followed  in 
the  administration,  or  even  as  to  whether  the  private  rights 
of  the  people  will  be  conscientiously  observed.  The  change 
wrought  during  the  century  after  1485  has  more  the  appear- 
ance of  governmental  usurpation  than  of  political  revolution. 
But  if  we  go  behind  the  appearance,  we  shall  find  that  the 
basis  of  the  government  had  been  changed.  Star-chamber 
and  High  Commission,  as  fashioned  and  employed  by  the 
Tudors,  were  national  popular  institutions.  They  protected 
the  people  against  the  violence  of  the  barons  and  the  rapacity 
of  the  foreign  ecclesiastics.1  So  long  as  the  King  followed 
a  popular  policy,  and  observed  and  protected  popular  rights, 
the  relation  between  state  and  government  in  this  system 
continued  unclear.  So  soon  as  the  government,  the  King, 
set  up  distinctly  the  claim  to  be  the  state  in  the  jure 
divino  theory  of  the  Stuarts,  then  the  real  character  of  the 
relation  became  manifest.  The  people,  now  consciously  the 
real  state,  broke  away  from  their  connection  with  the  King, 
renounced  him  as  the  bearer  of  the  power  of  the  state. 
The  problem  was  now  that  of  creating  a  new  and  better 
organization  of  the  state.  The  Parliament  was  the  only  exist- 
ing institution  which  could  now  serve  as  nucleus.  The  Parlia- 
ment was,  however,  but  the  representative  of  the  aristocracy 
in  the  government.  The  people  tried  to  reform  it  so  as  to 
make  it  representative  of  the  people.  This  could  not  be 
done  in  a  moment.  The  immediate  result  of  the  struggle 
between  the  people  and  the  King  was  the  partial  restoration 
of  the  power  of  the  aristocracy.2  I  do  not  consider  that  a 
revolution  in  the  form  of  state  was  effected  by  the  movements 
of  1 640-1 688.  The  reform  of  1688  touches  mainly  the  gov- 
ernment.    It  denied  that   the   King  was    the    state,    but    it 

1  Gneist,  Das  englische  Verwaltungsrecht,  S.  507,  515.     Zweite  Auflage. 

2  Ibid.  S.  584. 


The  Constitution  of  Great  Britain.  95 

did  not  settle  the  question  as  to  who  or  what  or  where  the 
state  was. 

It  was  nearly  a  century  and  a  half  before  this  problem 
received  its  solution.  It  was  finally  resolved  by  the  revolu- 
tion of  1832,  the  revolution  par  excellence  in  England's  politi- 
cal history.  This  is  usually  termed  a  reform,  but  it  was 
a  revolution  in  every  sense  of  the  word, — in  form,  in  result, 
and  in  the  manner  in  which  it  was  accomplished.  The 
popular  uprising  throughout  western  Europe  in  1830  gave 
the  immediate  impulse.  The  whig  leaders  in  the  Parlia- 
ment wisely  and  shrewdly  undertook  to  direct  this  impulse. 
The  movement  accomplished  itself  under  the  issue  of  a  bill 
in  Parliament  for  making  man,  instead  of  land,  the  holder 
of  suffrage,  and  for  the  distribution  of  representation  upon 
the  principle  of  population.  The  opposition  of  the  House 
of  Lords  to  the  measure  precipitated  the  revolution.  Mon- 
ster popular  assemblies  declared  resistance  to  the  govern- 
ment, and  threatened  the  House  of  Lords  with  destruction. 
The  persons  of  peers  were  attacked.  The  King  was  threat- 
ened with  revolution  by  the  ministers.  He  was  forced,  thus, 
to  order  dissolution  against  his  will  and,  at  last,  to  agree  that 
the  prime  minister  might  pack  the  House  of  Lords.1  It  did 
not  come  quite  to  civil  war,  but  violence  was  both  threatened 
and  exercised.  The  great  political  result  of  the  revolution 
was  that  the  people,  the  state,  became  organized  in  the 
House  of  Commons.  The  House  of  Commons  came,  thereby, 
to  occupy  a  double  position  in  the  English  system.  It  is  one 
branch  of  the  legislature,  and  it  is  sovereign  organization  of 
the  state.  In  the  former  capacity  it  has  no  more  power  than 
the  House  of  Lords.  In  the  latter,  it  is  supreme  over  King 
and  Lords  as  well  as  common  subjects. 

It  is  generally  claimed  that  the  House  of  Commons  reached 
this  position  through  the  employment  of  the  existing  forms 

1  May,  Constitutional  History  of  England,  Vol.  I,  pp.  330  ff.,  Vol.  II,  pp. 
218  ff.;   Molesworth's  History  of  England,  pp.  32-112. 


g6  Formation  of  the  Constitutions. 

of  law  and,  therefore,  without  revolution  ;  but  I  think  this 
confounds  fiction  with  form.  When  in  the  universal  con- 
sciousness the  form  does  not  contain  the  original  spirit  or 
intent  of  the  law,  but  is  made  a  subterfuge  for  the  accom- 
plishment of  something  contrary  to  the  same,  then  it  becomes 
a  fiction,  and  though  from  a  juristic  standpoint  we  may  still 
consider  it  as  containing  existing  law,  from  the  standpoint  of 
political  science  we  must  regard  it  as  cloaking  a  new  principle. 
The  King's  power  to  dissolve  the  Parliament  was  originally 
governed  wholly  by  the  royal  discretion.  When  the  ministers 
ordered  out  the  Horse  Guards  and  threatened  the  unwilling 
King  with  popular  violence  if  he  did  not  go  down  in  person 
and  dissolve  Parliament,  and  secured  their  purpose  in  this 
way,  they  simply  usurped  the  powers  of  the  Crown.  And 
when  they  forced  the  King  in  the  same  manner  to  consent 
to  the  packing  of  the  House  of  Lords,  they  usurped  again 
what  had  been,  to  that  time,  independent  prerogative.  It  is 
a  pure  fiction  to  say  that  because  the  Crown  now  nominally 
does  these  things,  it  may  do  them  in  fact.  It  is  the  min- 
istry, the  chiefs  of  the  party  in  majority  in  the  House  of 
Commons,  who  actually  do  these  things.  By  the  events 
of  1832  the  King  was  really  forced  to  surrender  to  the 
House  of  Commons  those  prerogatives  which  might  be  called 
prerogatives  of  sovereignty  or  prerogatives  of  the  state, 
and  the  House  of  Lords  was  definitely  assigned  to  its 
modern  position  of  a  governmental  organ  only.  I  contend, 
then,  that  this  change  of  system,  wrought  by  the  events  of 
1832,  was  a  revolution  in  every  sense  of  the  word,  and  that 
the  present  form  of  constitution  of  the  English  state  and 
government  dates  no  further  back  than  the  year  1832,  at 
which  time  what  has  been  usually  termed  the  revolution  of 
1688  finally  accomplished  itself.  The  present  constitution 
was  then  and  thus  formed  by  the  people  through  the  House 
of  Commons  ;  and  that  house  is  now  the  perpetual  constitu- 
tional convention  for  the  amending:  of  the  constitution.     Its 


The  Constitution  of  Great  Britain.  97 

acts  in  this  capacity  must,  indeed,  be  approved  by  the  Lords 
and  the  King ;  but  if  either  of  them  resists,  if  either  of  them 
undertakes  to  change  his  or  their  nominal  powers  into  real 
powers  in  this  respect,  i.e.  if  he  or  they  attempt  to  act  as  state 
instead  of  government,  the  means  and  precedents  are  already 
fully  established  whereby  the  Commons,  as  organization  of 
the  sovereign,  the  state,  may  overcome  the  attempt.  The  only 
effect  of  such  resistance  is  to  keep  the  House  of  Commons 
in  living  and  constant  rapport  with  the  people,  whose  sov- 
ereign organization  it  now  is.  The  only  sense,  then,  in 
which  the  British  constitution  is  a  more  historical  system 
than  that  of  the  United  States,  Germany,  or  France,  is  that 
in  its  development  it  has  proceeded  with  somewhat  less 
violence  and  has  retained  old  forms  and  old  names,  even  after 
they  have  become  mere  fictions,  under  which  are  cloaked 
the  same  spirit  and  principles,  more  openly  manifested  and 
more  boldly  pronounced  in  the  other  systems.1 

Forms  of  government  may  be  changed  through  existing 
legal  methods,  but  not  forms  of  state.  A  change  in  the 
form  of  state  results  from  a  natural  change  of  the  point  of 
sovereignty  in  the  political  society  and  manifests  itself 
through  the  display  of  superior  power.  In  a  word,  changes 
in  the  forms  of  state  are  and  can  be  accomplished  only 
through  revolution. 

1  Bagehot,  The  English  Constitution,  pp.  117  £ 


98  Formation  of  the  Constitutions. 


CHAPTER   II. 

HISTORY   OF   THE    FORMATION    OF   THE    CONSTITUTION    OF   THE 
UNITED    STATES. 

The  constitution  of  the  United  States  also  is  a  product  of 
revolution,  not  only  mediately  but  immediately ;  and  in  deal- 
ing with  it  from  the  juristic  standpoint  we  need  go  no  further 
back,  certainly,  than  the  year  1787.  We  are  not  yet,  however, 
upon  legal  ground,  as  I  explained  at  the  beginning  of  the 
foregoing  chapter.  We  are  in  this  chapter  tracing  the  organi- 
zation of  the  American  state  to  the  point  where  it  created 
its  present  constitution.  We  are  compelled  to  examine  the 
genesis  of  the  American  state  from  the  standpoint  of  history 
and  political  science.  To  do  this  correctly  we  must  begin 
at  its  beginning,  and  not  at  some  arbitrarily  chosen  point 
in  the  course  of  that  development. 

We  may  divide  our  political  history,  down  to  the  date 
of  the  formation  of  the  present  constitution,  into  three 
periods,  viz ;  the  colonial,  the  revolutionary,  and  the  con- 
federate. 

In  the  colonial  period  what  existed  on  this  side  of  the 
Atlantic  was  thirteen  local  governments.  The  state  was  the 
motherland.  From  the  juristic  point  of  view  the  motherland 
was  acting  entirely  within  its  rights  and  powers  when  it 
changed  or  modified,  abolished  or  re-established,  these  gov- 
ernments at  its  own  discretion.  They  were  the  crea- 
tures of  the  British  state  and,  legally,  absolutely  subject 
to  its  sovereignty.  The  forms  of  existing  law  offered  no 
escape  from  this  conclusion.  On  the  other  hand,  physical 
and  social  conditions  and  forces  were  working  for  the  crea- 


The  Constitution  of  the  United  States.  99 

tion  of  a  state  on  this  side  of  the  water,  which,  so  soon  as 
it  should  reach  a  sufficient  degree  of  consolidated  strength, 
would  dispute  the  sovereignty  of  the  British  state  as  unna- 
tional  and  foreign.  As  first  among  these  conditions  and 
forces,  I  would  place  the  geographic  separation  by  three  thou- 
sand miles  of  sea,  equal  in  this  day  to  at  least  four  times 
that  distance,  so  far  as  intercourse  is  concerned.  As  geo- 
graphic unity  is  one  of  the  most  powerful  of  the  centripetal 
forces  in  political  formation,  so  geographic  separation  is  one 
of  the  most  powerful  of  the  centrifugal  forces ;  and  while 
these  thirteen  colonies  were  thus  so  widely  separated  from 
the  state,  which  was  the  source  of  their  institutions,  they  all 
lay  in  a  territory  of  natural  unity.  The  physical  conditions 
were  highly  favorable  to  the  formation  of  a  sovereignty,  a 
state,  upon  this  territory.  Secondly,  the  ethnical  and  social 
conditions  were  conspiring  to  the  same  end.  At  least  three- 
fourths  of  the  population  were  of  English  descent,  the  lan- 
guage was  English,  the  religion  was  Christian  and  Protestant, 
the  custom  was  the  common  law,  the  pursuits  were  agricul- 
tural and  commercial.  A  substantial  consensus  in  all  that 
goes  to  make  up  ethnical  unity  prevailed.  On  the  other  hand, 
the  ethnical  separation  from  the  motherland  was  not  at  all  so 
distinct  as  the  geographical.  There  were,  indeed,  Dutch, 
Germans,  Swedes,  and  French  inhabiting  certain  parts  of  this 
territory,  and  it  can  hardly  be  doubted  that  in  New  York  and 
Pennsylvania  these  un-English  elements  were  easily  imbued 
with  anti-English  sentiments.  There  was  also  the  negro 
race,  making  up,  at  the  time  of  the  revolution,  about  one- 
sixth  of  the  population,  and  living  for  the  most  part  south  of 
the  Pennsylvania  line.  It  was  then,  however,  a  real  subject 
race,  exerting  no  direct  influence  upon  the  ethnical  develop- 
ment of  the  dominant  race,  either  through  an  amalgamation 
of  blood  or  civilization.  The  ethnical  separation  from  the 
motherland  was  rather  more  to  be  seen  in  the  differences  of 
private  law  and  custom  than  in  race.    The  general  proprietor- 


ioo  Formation  of  the  Constitutions. 

ship  of  land  and  general  equality  in  the  domain  of  private 
rights  were  quite  substantial  distinctions  which  had  been 
worked  out  in  the  new  world. 

Complete  geographical  separation  and  partial  ethnical  sepa- 
ration from  the  motherland,  together  with  complete  geograph- 
ical unity,  substantial  ethnical  unity,  and  almost  complete 
identity  of  interests  among  themselves  were  the  forces  which 
conspired,  at  last,  to  awaken  the  consciousness  of  the  people  of 
these  thirteen  colonies  to  the  fact  that  they  had  attained  the 
natural  conditions  of  a  sovereignty,  —  a  state.  The  impulse 
to  objectify  this  consciousness  in  institutions  became  irresisti- 
ble. Its  first  enduring  form  was  the  Continental  Congress. 
This  was  the  first  organization  of  the  American  state.  From 
the  first  moment  of  its  existence  there  was  something  more 
upon  this  side  of  the  Atlantic  than  thirteen  local  govern- 
ments. There  was  a  sovereignty,  a  state  ;  not  in  idea  simply 
or  upon  paper,  but  in  fact  and  in  organization.  The  revolu- 
tion was  an  accomplished  fact  before  the  declaration  of  1776, 
and  so  was  independence.  The  act  of  the  4th  of  July  was  a 
notification  to  the  world  of  faits  accomplis.  A  nation  and  a 
state  did  not  spring  into  existence  through  that  declaration, 
as  dramatic  publicists  are  wont  to  express  it.  Nations  and 
states  do  not  spring  into  existence.  The  significance  of  the 
proclamation  was  this  :  a  people  testified  thereby  the  con- 
sciousness of  the  fact  that  they  had  become,  in  the  progres- 
sive development  of  history,  one  whole,  separate,  and  adult 
nation,  and  a  national  state,  and  that  they  were  determined  to 
defend  this  natural  status  against  the  now  no  longer  natural 
supremacy  of  a  foreign  state.  French  statesmen  had  foreseen 
and  predicted  this  development  and  result  a  decade  before 
the  stamp  act.  The  American  state,  organized  in  the  Con- 
tinental Congress,  proclaimed  to  the  world  its  sovereign  exis- 
tence, and  proceeded,  through  this  same  organization,  to 
govern  itself  generally,  for  the  time  being,  and  to  authorize 
the   people  resident  within   the  separate  colonies  to  make 


The  Constitution  of  the  United  States.         101 

temporary  arrangement  for  their  local  government,  upon  the 
basis  of  the  widest  possible  suffrage. 

The  first  paper  constitution  enacted  by  the  American  state 
was  that  of  November,  1777,  called  the  "Articles  of  Confed- 
eration." The  one  fatal  and  disastrous  defect  of  this  constitu- 
tion was  that  it  provided  no  continuing  organization  of  the 
state.  It  created  only  a  central  government,  and  that,  too,  of 
the  weakest  character.  When,  therefore,  the  Continental  Con- 
gress, the  revolutionary  organization  of  the  American  state 
and  its  revolutionary  central  government,  gave  way,  in  March 
of  1 78 1,  to  the  central  government  created  by  this  constitu- 
tion, the  American  state  ceased  to  exist  in  objective  organi- 
zation. It  returned  to  its  subjective  condition  merely,  as 
idea  in  the  consciousness  of  the  people.  From  the  stand- 
point of  political  science  what  existed  now,  as  objective 
institutions,  was  a  central  government  and  thirteen  local 
governments.  From  the  standpoint  of  public  law,  on  the 
other  hand,  what  existed,  as  objective  institutions,  was  thir- 
teen states,  thirteen  local  governments,  and  one  central 
government.  This  was  a  perfectly  unbearable  condition  of 
things  in  theory,  and  was  bound  to  become  so  in  fact.  The 
system  would  not  work  at  all  when  it  was  attempted  to  put 
it  into  operation.  A  maze  of  contradictions  was,  of  course, 
revealed  at  every  point ;  and  so  soon  as  the  effort  was  made 
to  correct  the  defects,  it  was  discovered  that  the  system 
provided  no  practically  possible  way  to  effect  the  same,  even 
in  the  smallest  degree.  Of  course  it  did  not  and  could  not. 
There  was  here  simply  a  struggle  between  the  central  gov- 
ernment and  the  local  governments  about  the  distribution  of 
governmental  powers,  which  could  only  be  settled  by  the  word 
of  the  sovereign  —  the  state.  The  state,  however,  was  not 
organized  in  the  confederate  constitution  ;  i.e.  it  could  not 
legally  speak  the  sovereign  command.  The  statesmen  of  the 
day  did  not  know,  at  first,  what  was  the  matter.  At  length 
two,  more  far-seeing  than  the  rest,  discovered  the  root  of  the 


102  Formation  of  the  Constitutions. 

difficulty,  viz ;  that  the  sovereign,  the  state,  had  no  legal 
organization  in  the  system.  These  two  were  Bowdoin  and 
Hamilton.  It  was,  in  one  sense,  at  least,  a  disheartening  dis- 
covery, for  it  meant  revolution  or  national  death.  They  were 
not  long  in  making  up  their  minds  to  the  former,  of  course. 
Their  chief  concern  was  to  make  the  revolution  peaceable. 
The  more  blunt  and  straightforward  Bowdoin  proceeded 
openly  and  trustfully.  He  moved  the  Massachusetts  legis- 
lature to  instruct  the  delegates  sent  by  it  to  the  Confed- 
erate Congress  to  offer  a  resolution  in  that  body  providing 
for  the  call  of  a  convention  of  representatives  from  the 
whole  country,  who  should  initiate  a  revision  of  the  confeder- 
ate constitution.  Expressed  in  the  language  of  political  sci- 
ence, Bowdoin's  idea  was  to  reorganize  the  American  state  in 
the  form  of  a  general  convention  representing  the  whole  people 
resident  within  the  thirteen  commonwealths,  with  the  power  to 
bind  the  whole  by  the  vote  of  the  majority.  Those  Massachu- 
setts delegates  were,  however,  so  astounded  by  the  revolution- 
ary character  of  this  proposition  that  they  disobeyed  their 
instructions,  although  they  were  legally  bound  to  follow  them. 
Manifestly  some  other  method  than  the  direct,  and  some  other 
machinery  than  that  of  the  Confederate  Congress,  must  be 
employed  in  securing  the  reorganization  of  the  American 
state.  The  more  astute  and  politic  Hamilton  was  better 
qualified  than  Bowdoin  to  seize  opportunities  and  manipulate 
occasions.  In  the  spring  of  1785,  the  derangement  of  busi- 
ness relations  between  the  inhabitants  of  Virginia  and  Mary- 
land made  it  necessary  that  some  understanding  should  be 
reached  by  these  two  commonwealths  in  regard  to  the  navi- 
gation of  the  waters  lying  between  them.  Commissioners 
representing  each  were  appointed,  and  held  conference  upon 
the  subject  at  Alexandria  in  March  of  that  year.  They  soon 
perceived  that  the  regulation  of  commercial  relations  be- 
tween Virginia  and  Maryland  would  avail  but  little  unless  all 
the  commonwealths   could  be  prevailed  upon  to  adopt  the 


The  Constitution  of  the  United  States.        103 

same  rules.  They  reported  this  conclusion  to  the  legislatures 
of  their  respective  commonwealths.  The  legislature  of  Vir- 
ginia thereupon  proposed  a  commercial  convention  of  all 
the  commonwealths  to  meet  at  Annapolis  in  September  of 
1786.  Hamilton  saw  in  this  his  opportunity.  His  plan  was 
formed  at  once  to  change  this  commercial  convention  into  a 
constitutional  convention.  He  secured  the  acceptance  of  the 
Virginia  invitation  by  the  legislature  of  New  York  and  his 
own  appointment  as  a  delegate. 

Upon  arriving  in  Annapolis  he  found  only  five  common- 
wealths represented.  A  coup  d'etat  attempted  by  so  small 
a  body  could  not  but  fail.  Hamilton  changed  his  plan.  He 
moved  the  convention  to  adopt  a  proposition  recommending 
to  the  commonwealths  the  assembling  of  a  constitutional 
convention.  He  did  not  express  it  exactly  in  this  language. 
He  knew  that  he  was  proposing  an  extra-legal  act,  i.e.  from  the 
juristic  standpoint,  an  illegal  act.  According  to  the  existing 
constitutional  law,  the  Confederate  Congress  alone  could  orig- 
inate changes  in  the  constitution,  and  unanimous  approval 
by  the  legislatures  of  the  commonwealths  could  alone  make 
them  law.  The  exact  wording  of  his  proposition  was  for  a 
convention  "to  take  into  consideration  the  situation  of  the 
United  States,  to  devise  such  further  provisions  as  shall 
appear  to  them  necessary  to  render  the  constitution  of  the 
federal  government  adequate  to  the  exigencies  of  the  Union; 
and  to  report  such  an  act  for  that  purpose  to  the  United 
States  in  Congress  assembled,"  i.e.  to  the  Confederate  Con- 
gress, "as,  when  agreed  to  by  them,  and  afterwards  confirmed 
by  the  legislature  of  every  state"  (commonwealth),  "will  ef- 
fectually provide  for  the  same."  1  This  is  not  at  all  what 
happened  when  the  convention  was  successfully  assembled, 
as  we  shall  see.  That  Hamilton  consciously  and  deliberately 
intended  this  form  of  words  as  a  cloak  to  his  real  purpose,  we 

1  Elliot's  Debates,  Vol.  I,  p.  118. 


104  Formation  of  the  Constitutions. 

do  not  exactly  know  ;  but  we  may  well  surmise  it.  A  great  deal 
of  discussion  followed  in  regard  to  this  proposition,  in  the  Con- 
federate Congress,  in  the  legislatures  of  the  commonwealths, 
in  the  press,  and  among  the  people.  Hamilton  almost  de- 
spaired of  seeing  it  accepted.  He  resolved  upon  the  expedi- 
ent of  securing  from  the  New  York  legislature  instructions 
to  its  delegates  in  the  Confederate  Congress  to  move  and 
support  in  that  body  a  recommendation  by  that  body  to  the 
several  commonwealths  for  the  assembly  of  the  convention. 
He  succeeded  in  the  legislature,  and,  with  the  aid  of  Massa- 
chusetts, in  the  Congress.  This  settled  the  question  ;  and  the 
convention,  composed  of  delegates  from  all  the  commonwealths 
but  Rhode  Island,  met  in  Philadelphia  in  May  of  1787. 

It  was  composed  of  almost  all  the  really  great  characters 
which  the  revolution  had  produced.  The  natural  leaders  of 
the  American  people  were  at  last  assembled  for  the  purpose 
of  deliberating  upon  the  whole  question  of  the  American 
state.  They  closed  the  doors  upon  the  idle  curiosity  and  the 
crude  criticism  of  the  multitude,  adopted  the  rule  of  the  ma- 
jority in  their  acts,  and  proceeded  to  reorganize  the  American 
state  and  frame  for  it  an  entirely  new  central  government. 
Our  question  at  this  point  is  in  regard  to  the  first  part  of 
their  work,  viz  ;  the  reorganization  of  the  American  state  ; 
not  its  reorganization  in  the  constitution,  —  that  is  a  topic  of 
constitutional  law,  and  comes  under  the  next  division  of  my 
treatise,  —  but  its  reorganization  for  the  original  establish- 
ment of  the  constitution.  This  was  the  transcendent 
result  of  their  labors.  It  certainly  was  not  understood  by 
the  Confederate  Congress,  or  by  the  legislatures  of  the  com- 
monwealths, or  by  the  public  generally,  that  they  were  to 
undertake  any  such  problem.  It  was  generally  supposed  that 
they  were  there  for  the  purpose  simply  of  improving  the 
machinery  of  the  Confederate  government  and  increasing 
somewhat  its  powers.  There  was,  also,  but  one  legal  way  for 
them  to  proceed  in  reorganizing  the  American  state  as  the 


The  Constitution  of  the  United  States.        105 

original  basis  of  the  constitution  which  they  were  about  to 
propose,  viz ;  they  must  send  the  plan  therefor,  as  a  prelim- 
inary proposition,  to  the  Confederate  Congress,  procure    its 
adoption  by  that  body  and  its  recommendation  by  that  body 
to  the  legislatures  of  the  commonwealths,  and  finally  secure 
its  approval  by  the  legislature  of  every  commonwealth.     The 
new  sovereignty,  thus  legally  established,  might  then  be  legally 
and  constitutionally  appealed  to  for  the  adoption  of  any  plan 
of  government  which  the  convention  might  choose  to  propose. 
The  convention  did  not,  however,  proceed  in  any  such  man- 
ner.    What  they  actually  did,  stripped  of  all  fiction  and  ver- 
biage, was  to  assume  constituent  powers,  ordain  a  constitu- 
tion of  government  and  of  liberty,  and  demand  the  plebiscite 
thereon,    over   the   heads   of   all    existing   legally   organized 
powers.1    Had  Julius  or  Napoleon  committed  these  acts,  they 
would  have  been  pronounced  coup  d'etat.     Looked  at  from  the 
side  of  the  people  exercising  the  plebiscite,  we  term  the  move- 
ment revolution.     The  convention  clothed  its  acts  and  assump- 
tions in  more  moderate  language  than  I  have  used,  and  pro- 
fessed to  follow  a  more  legal  course  than  I  have  indicated. 
The  exact  form  of  the  procedure  was  as  follows.     They  placed 
in  the  body  of  the  proposed  constitution  itself   a  provision 
declaring  that  ratification  by  conventions  of   the  people    in 
nine  states    (commonwealths)    should    be    sufficient   for  the 
establishment  of  the  constitution  between  the  states  (com- 
monwealths) so  ratifying  the  same.2      They  then  sent  the 
instrument  entire   to   the   Confederate   Congress,   with   the 
direction,   couched   in  terms  of    advice,   that    the    Congress 
should  pass  it  along,  untouched,  to  the  legislatures   of   the 
commonwealths,  and  that  these  should  pass  it  along,  also 
untouched,  to  conventions  of  the  people  in   each  common- 
wealth, and  that  when  nine  conventions  should  have  approved, 
Congress  should  take  steps  to  put  the  new  government  into 

1  Elliot's  Debates,  Vol.  I,  pp.  414  ff.;   Ibid.  Vol.  V,  pp.  197,  216. 
8  United  States  Constitution,  Art.  VII. 


106  Formation  of  the  Constitutions. 

operation  and  abdicate.  Of  course  the  mass  of  the  people 
were  not  at  all  able  to  analyze  the  real  character  of  this  pro- 
cedure. It  is  probable  that  many  of  the  members  of  the 
convention  itself  did  not  fully  comprehend  just  what  they 
were  doing.  Not  many  of  them  had  had  sufficient  education 
as  publicists  to  be  able  to  generalize  the  scientific  import  of 
their  acts. 

Apparently  the  form  of  this  procedure  supplemented  rather 
than  violated  existing  law,  except  in  one  point.  It  might  be 
conceived  as  adding  the  approval  of  the  conventions  of  the 
people  to  that  of  the  Confederate  Congress  and  the  legis- 
latures of  the  commonwealths.  Really,  however,  it  deprived 
the  Congress  and  the  legislatures  of  all  freedom  of  action  by 
invoking  the  plebiscite.  It  thus  placed  these  bodies  under 
the  necessity  of  affronting  the  source  of  their  own  existence 
unless  they  yielded  unconditionally  to  the  demands  of  the 
convention.  And  the  one  point  which  this  theory  of  the 
supplementary  character  of  the  plebiscite  could  not  cover  was 
the  one  of  transcendent  importance,  and  the  real  test  of  the 
nature  of  the  whole  procedure.  That  point  was  the  declara- 
tion of  the  convention  that  the  assent  of  the  conventions  of 
the  people  in  nine  commonwealths  should  be  deemed  suffi- 
cient for  the  adoption  of  the  new  constitution.  The  real 
import  of  this  declaration  was  confused  by  the  limitation 
that  the  new  constitution  should  be  regarded  as  established 
only  for  the  assenting.  It  was  not  clearly  seen,  at  the 
moment,  that  the  proposition  attributed  power  to  the  nine 
to  act  for  the  whole  thirteen.  A  little  critical  analysis  will, 
however,  make  this  easily  manifest.  The  confederate  con- 
stitution, the  existing  law,  prescribed,  as  we  know,  that  no 
alteration  should  be  made  in  the  articles  of  the  confederation 
except  by  agreement  of  the  Congress  and  approval  by  the 
legislature  of  every  commonwealth.1     Now  if  the  new  con- 

1  Articles  of  Confederation,  Art.  XIII. 


The  Constitution  of  the  United  States,         107 

stitution  could  be  adopted  by  the  conventions  of  the  people 
in  nine  commonwealths,  even  though  professedly  for  them- 
selves alone,  then  and  in  consequence  thereof  the  old  consti- 
tution must  be  destroyed,  for  the  whole  thirteen,  by  the  act 
of  the  nine.  This  act  would  therefore  violate  the  existing 
law  both  in  spirit  and  letter,  and  would  stamp  the  whole 
procedure  as  extra-legal ;  i.e.  as  illegal.  We  must,  therefore, 
give  up  the  attempt  altogether  to  find  a  legal  basis  for  the 
adoption  of  the  new  constitution  and  have  recourse  to  politi- 
cal science,  to  the  natural  and  historical  conditions  of  the 
society  and  the  state.  The  principle  of  that  science  is  that 
the  undoubted  majority  of  the  political  people  of  any  natural 
political  unity  possess  the  sovereign  constituting  power,  and 
may  as  truly  act  for  the  whole  people  in  building  up  as  tear- 
ing down ;  more  truly,  in  fact,  for  in  political  science  the 
only  purpose  of  tearing  down  is  to  secure  a  better  building 
up  of  the  whole  structure.  This  proposition  of  the  conven- 
tion, therefore,  when  scientifically  explained,  really  declared 
by  implication  that  the  plebiscite  in  nine  commonwealths 
should  be  sufficient  approval  of  the  acts  of  the  convention  to 
establish  the  new  constitution  over  the  whole  thirteen.  Nor 
did  this  principle  remain  mere  theory.  The  confederate  con- 
stitution was  abolished,  and  the  new  constitution  put  into 
operation  when  approved  by  the  plebiscite  in  but  eleven  com- 
monwealths. Nominally  the  new  system  was  not  yet  estab- 
lished for  the  two  non-assenting  commonwealths,  but  the  old 
system  was  destroyed  for  them  without  their  consent  ;  and,  as 
we  have  seen,  the  same  principle  which  justifies  the  act  of  the 
eleven  in  reference  to  the  latter  procedure  not  only  justifies 
but  requires  a  coextensive  positive,  constructive  procedure. 
As  a  fact,  it  was  but  policy  which  dictated  a  little  j>atience 
and  secured  the  necessary  result  without  resort  to  force. 

From  this  review  of  the  history  of  the  original  formation 
of  our  present  constitution,  I  contend  that  the  procedure  can- 
not be  scientifically  comprehended  except  upon  the  principle 


io8  Formation  of  the  Constitutions. 

that  the  convention  of  1787  assumed  constituent  powers, 
i.e.  assumed  to  be  the  representative  organization  of  the 
American  state,  the  sovereign  in  the  whole  system  ;  ordained 
the  constitution  of  government  and  of  liberty ;  called  for 
the  plebiscite  thereon,  and  fixed  the  majority  necessary  for 
approval.  The  all-important  hermeneutical  conclusion  from 
this  principle  is,  that  the  original  construction  of  the  Ameri- 
can state  cannot  be  interpreted  by  juristic  methods.  Scien- 
tifically we  must  place  its  genesis  in  the  domain  of  political 
history  and  political  science,  and  follow  and  explain  it  by  the 
methods  of  these  sciences. 


The  Constitution  of  the  German  Empire.       109 


CHAPTER    III. 

HISTORY    OF    THE    FORMATION    OF    THE    CONSTITUTION    OF    THE 
GERMAN    EMPIRE. 

It  will  not  be  possible  to  comprehend  the  genesis  of  the 
modern  German  state  without  going  back  to  the  Carolingian 
constitution.  What  we  now  term  the  German  Empire  re- 
ceived its  first  political  organization  in  the  great  European 
Empire  of  Charlemagne.  It  was  not  distinguished  politically 
from  the  other  parts  of  the  Empire.  The  Emperor  was  imme- 
diate sovereign,  and  governed  through  margraves,  counts  and 
bishops,  appointed  by  himself,  and  amenable  to  himself.  The 
division  of  the  Empire,  in  843,  gave  that  part  of  the  Empire 
lying  east  of  the  Rhine  and  north  of  the  Alps  to  Louis  the 
German,  under  the  name  "Ostfranken."  *  In  870  the  west- 
ern boundary  of  Ostfranken  was,  by  the  compact  at  Mersen, 
moved  westward,  so  as  to  include  the  larger  part  of  Lorraine 
and  Frisia.2  With  this,  the  territorial  basis  of  the  indepen- 
dent German  state  was  substantially  completed.  The  politi- 
cal system  given  to  it  by  Charlemagne  while  it  formed  a  part 
of  the  great  European  Empire,  suffered  very  great  modifica- 
tion by  the  dissolution  of  the  Empire.  The  ruler  was  no 
longer  an  Emperor,  but  only  a  King.  I  know  of  no  better 
way  to  express  the  idea  of  this  difference  than  by  the  propo- 
sition that  the  Emperor  was  sovereign,  but  the  King  was 
officer ;  the  Emperor  was  the  state,  but  the  King  was  only 
the  government ;  the  Emperor  was  the  vicegerent  of  God, 
but  the  King  was  only  the  leader  of  the  people.     The  stu- 

1  Waitz,  Deutsche  Verfassungsgeschichte,  Bd.  IV,  S.  591  ff.;  Giesebrecht, 
Geschichte  der  deutschen  Kaiserzeit,  Bd.  I,  S.  148.  2  Ibid.  S.  150. 


no  Formation  of  the  Constitutions. 

dent  of  the  history  of  the  development  of  the  Carolingian 
imperium,  in  its  connection  with  Rome  and  with  its  theo- 
cratic basis,  will  recognize  and  appreciate  these  distinctions. 
The  result  of  the  change  was  decrease  of  power  at  the 
centre,  increase  of  independence  in  the  localities.  The  mar- 
graves, counts  and  bishops,  who  had  received  their  appoint- 
ments from  the  Emperor,  raised  the  claim  that  the  King 
could  not  remove  them,  that  their  right  was  as  sacred  as 
his.  That  is,  the  impulse  to  federalize  the  system  was  be- 
ginning to  manifest  itself.  The  King  did  not  know  how  to 
meet  this  ;  he  even  helped  it  on  by  dividing  the  kingdom 
among  his  three  sons.1  At  the  extinction  of  the  Carolingian 
house,  in  911,  the  kingdom  had  not  only  become  federalized 
in  fact,  but  the  hereditary  descendants  of  the  former  officials 
of  the  Empire  had  become  the  bearers  of  the  sovereignty, 
and  in  their  union  were  the  supreme  organization  of  the 
state.  They  now  elected  their  King,  and  conferred  upon 
him  his  powers  ;  and  they  guaranteed  to  each  other  their  in- 
dependence of  the  King.  The  state  had  thus  become  aristo- 
cratic. It  was  represented  by  the  united  princes.  The  King 
was  only  the  central  government ;  and  each  prince  was  local 
government  in  his  particular  locality.2  King  Otto  the  Great 
succeeded  in  arresting  momentarily  the  course  of  this  develop- 
ment. In  conjunction  with  the  Pope  and  the  bishops,  he  suc- 
ceeded in  restoring  the  imperial  sovereignty,  and  in  reducing 
the  princes  momentarily  to  the  position  of  officials  again.3 
The  great  struggle  between  the  Emperor  and  the  Pope  during 
the  latter  half  of  the  eleventh  century  shook  the  theocratic 
foundation  of  the  re-established  imperial  sovereignty,  and 
opened  the  way  for  the  reappearance  of  the  aristocratic  state, 
with  its  federal  system  of  government.4 

The  Hohenstaufen  Emperors  struggled  manfully  against 
this  course  of  things,  but  without  avail.      Frederic   II  was 

1  Giesebrecht,  Geschichte  der  deutschen  Kaiserzeit,  Bd.  I,  S.  158. 

2  Ibid.  S.  188.  8  Ibid.  S.  447  ff.  *  Ibid.  Bd.  Ill,  S.  1020. 


The  Constitution  of  the  German  Empire,       1 1 1 

obliged,  himself,  to  recognize  this  status  of  fact  and  give  it, 
for  the  first  time,  the  sanction  of  law.  In  the  imperial  instru- 
ments known  as  the  "constitutio  de  juribus  principum  eccle- 
siasticorum"  of  the  year  1220,  and  the  "constitutio  de  juribus 
principum  saecularium  "  of  the  year  1232,  the  Emperor  legal- 
ized the  federal  system  of  government  for  Germany,  by 
acknowledging  the  independent  rights  of  the  princes  to  gov- 
ern in  their  own  localities.1  The  imperium  as  sovereign  state 
was  thus  destroyed.  The  German  kingship,  as  central  gov- 
ernment, was  really  all  that  remained.  The  imperium  was 
now  but  a  titular  appendage.  The  truth  of  this  proposition 
is  surely  made  manifest  in  the  "constitutio  Francofurtensis 
de  jure  et  excellentia  imperii"  of  the  year  1338,  in  which 
the  princes  and  the  King  agreed  that  the  person  elected  Ger- 
man King  by  the  princes  should  be  also  Emperor  without 
recognition  and  coronation  by  the  Pope.2 

From  this  event  down  to  the  election  of  Charles  V  this 
state  of  things  became  fixed  in  all  the  details  of  the  consti- 
tution. In  the  aristocratic  state  the  centrifugal  forces  are 
always  predominant.  The  individuals  who  compose  the  aris- 
tocracy are  the  most  capable  and  self-reliant  personalities. 
Each  of  them  feels  his  ability  to  take  care  of  himself  and  his 
independence  of  governmental  protection.  If  they  are  not 
compelled  to  unity  over  against  the  monarchy  or  the  democ- 
racy, they  drift  more  and  more  into  political  disunion.  This 
was  the  course  of  development  in  the  German  state  from  the 
"constitutio  de  jure  et  excellentia  imperii "  to  the  accession 
of  Maximilian  I  in  1493.  Maximilian  undertook  to  restrain 
the  princes  in  their  particularistic  politics  through  three  very 
important  measures.  The  first  was  called  "der  ewige  Land- 
frieden,"  the  permanent  peace,  of  the  year  1495.  It  forbade 
the  "  Fehde,"  self-help,  among  the  princes,  and  asserted  the 
jurisdiction  of  the  imperial  courts  over  their  disputes.      The 

1  Zopfl,  Grundsaetze  des  gemeinen  deutschen  Staatsrechts,  Bd.  I,  S.  159. 

2  Ibid. 


U2  Formation  of  the  Constitutions. 

second  of   these    measures   created  the    "  Reichskammerge- 
richt,"  the  court  of  the  Imperial  Chamber,  consisting  of  a 
judge  and  sixteen  assistants,  the   judge   and    one   assistant 
appointed  by  the  Emperor,  the  other  assistants  elected  by 
the  princes.1      This  organization  was  vested  with   jurisdic- 
tion  over  the  controversies   between   the   princes   and  was 
intended  to  displace  the  appeal  to  the  "  Fehde,"  which  had 
become  the  universal  custom  in  the  aristocratic  state.      The 
third    measure   reorganized,   in    1518,  the    "  Reichshofrath," 
the  Aulic  Council,  which  was  both  an  administrative  and  a 
judicial  body,  so  as  to  give  it  a  better  hold  upon  the  princes.2 
The  successor  of  Maximilian,  Charles  V,  made  the  attempt 
to  restore  the  imperial  sovereignty.    Two  bloody  and  destruc- 
tive wars  resulted,  in  which  the  Emperor  was  worsted,  and 
consequently  the  German    state    still    further  decentralized. 
The  peace  of  Westphalia,  which  closed  the  epoch,  presented 
a  constitution  for  the  German  system  which  lacked  but  little 
of  complete  confederatism.      It  not  only  recognized  the  in- 
herent right  of  the  princes  to  govern  independently  of  the 
Emperor,  each  in  his  own  locality,  and  to  participate  with 
the  Emperor  in  the  imperial  government,   but  it  acknowl- 
edged to  each  prince  the  power  to  determine  the  religion  of 
his  land   and  people  and   the    international  powers  of  war 
and  treaty  with  foreign  states.3      After  the  middle   of   the 
seventeenth    century   we    can,    therefore,    no   longer    speak, 
with    any   degree   of    correctness,    concerning   the    German 
state.     The    "Reichstag"   still  remained,    but   it   was  little 
more   than   a   congress  of  ambassadors.     The   Emperor  re- 
mained, but  the  imperium  was   little   more  than  an  office 
with  very  limited  executive  powers.      The  sovereignty  was 
rapidly   passing   from  the  united  princes  to  the   individual 

1  Zopfl,  Grundsaetze  des  gemeinen  deutschen  Staatsrechts,  Bd.  I,  S.  217. 

2  Ibid.  S.  224. 

3  Ibid.  S.   162;  Instrumenti  pads  Westphalicae,  Instrumentum  pads  Monas- 
teriense,  §§  62,  63 ;  Ghillany,  Diplomatisches  Handbuch,  Bd.  I,  S.  92. 


The  Constitution  of  the  German  Empire.       1 1 3 

princes.1  The  destruction  of  the  Empire  by  Napoleon  in 
1806  completed  the  work.  There  was  after  1806  no  longer 
a  German  state,  but  a  great  number  of  German  states.  All 
but  four  of  these,  viz ;  Austria,  Prussia,  Swedish  Pomerania 
and  Holstein,  entered  the  confederation  of  the  Rhine  under 
the  protectorate  of  Napoleon.2  The  overthrow  of  Napoleon 
terminated  this  connection,  and  the  congress  of  Vienna  in 
181 5  recognized  finally,  within  the  territory  of  the  former 
Empire  north  of  the  Alps,  thirty-eight  states  in  league  with 
each  other.3  With  this  the  confederatizing  of  the  Empire  was 
completed  both  in  fact  and  in  law.  With  this  the  successors  of 
the  original  officials  of  the  Empire  had  become  sovereigns. 
The  aristocratic  development  had  triumphed  completely  over 
the  monarchic  in  the  Empire. 

If  the  unity  of  Germany  as  a  single  state  should  ever  again 
be  attained,  it  must  be  through  the  power  of  the  democracy, 
and  the  state  must  become  national,  popular.  For  thirty 
years  after  18 15  this  was  the  dream  of  the  idealists  and  the 
patriots.  At  last,  in  1848,  it  came  to  the  first  trial  for  real- 
ization. The  result  was  universal  development  of  the  idea 
and  the  impulse,  but  no  immediate  success  in  the  world  of 
fact.  One  great  lesson,  at  least,  was  learned  by  the  experi- 
ences of  1848  and  1849,  viz;  that  the  people  alone  could 
not  secure  the  reorganization  of  the  German  state.  One  of 
the  existing  states  must  take  the  lead  and  furnish  the  organ- 
ized power  to  carry  the  plan  successfully  through.  Which 
should  it  be?  The  people  looked  to  Prussia,  but  her  King 
was  not  inclined  to  accept  the  responsibility.  Prussia,  how- 
ever, was  the  only  state  capable  of  doing  this  great  work. 
Austria  was  too  un-German,  and  the  rest  were  too  weak.4 

1  Schulze,  Lehrbuch  des  deutschen  Staatsrechts,  Erstes  Buch,  S.  51  ff. 

2  Ibid.  S.  81  ff. 

8  Ibid.  S.  96;   Acte  du  Congres  de  Vienne,  Art.  LVIII;    Ghillany,  Diploma- 
tisches  Handbuch,  Bd.  I,  S.  346. 

4  Schulze,  Lehrbuch  des  deutschen  Staatsrechts,  Erstes  Buch,  S.  1 23  ff. 


114  Formation  of  the  Constitutions. 

Fifteen  years  more  of  waiting  and  of  longing  passed.  The 
timid  and  vacillating  Frederic  William  IV  passed  away,  and 
the  strong  and  resolute  William  I  succeeded  to  the  Prus- 
sian throne.  It  was  hardly  to  be  supposed  that  this  thoroughly 
monarchic  character  would  approach  the  German  people  and 
assume  the  leadership  in  transforming  the  confederacy  of 
princes  into  a  national  popular  state.  This  was,  however, 
exactly  what  happened.  When  the  hopes  of  the  idealists 
were  running  lowest,  there  appeared,  under  date  of  Septem- 
ber 15,  1863,  a  memorial  from  the  Prussian  ministry,  declaring 
that  the  most  important  and  essential  reform  required  by  ex- 
isting conditions  was  the  introduction  of  national  popular 
representation  into  the  confederate  government.1  From  this 
moment  Prussia,  the  real  bearer  of  German  political  civili- 
zation in  the  confederacy,  assumed  her  proper  role  as  the 
nucleus  around  which  the  national  popular  state  should  form 
itself.  The  centuries  of  dissolution  of  the  old  Empire  under 
the  leadership  of  the  half-German  Austria  were  now  seen  to 
have  their  meaning.  The  German  nation  was  coming  to 
itself  politically.  On  the  9th  of  April,  1866,  the  Prussian 
representative  in  the  Confederate  Diet  laid  before  that  body 
the  proposition  from  the  Prussian  government  that  a  national 
convention,  consisting  of  members  chosen  by  universal  suf- 
frage and  direct  election,  should  be  called,  and  that  a  plan 
for  the  reform  of  the  existing  confederate  constitution,  to  be 
agreed  upon  by  the  governments  of  the  several  states,  should 
be  laid  before  this  convention  for  deliberation  and  ratification.2 
The  Diet  referred  the  proposition  to  a  committee.  The 
princes  generally  were  naturally  unfriendly  to  the  plan,  since 
it  presaged  the  destruction  of  their  individual  sovereignty. 
The  proposition  dragged,  therefore,  in  committee ;  and  the 
Prussian  government  was  unable  to  secure  any  agreement 
even  for  a  date  of  assembly  of  the  national  convention.3     It 

1  Laband,  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  IO. 

2  Ibid.  S.  11.  *7»id.  S.  I2ff. 


The  Constitution  of  the  German  Empire.       i  r  5 

was  clearly  manifest  that  the  great  change  could  not  be 
accomplished  through  the  process  of  peaceable  reform.  The 
Diet  was  for  the  maintenance  of  the  status  quo  under  the 
leadership  of  Austria. 

In  the  conflict  of  ideas  and  of  interests  between  Austria 
and  Prussia  which  at  the  moment  was  becoming  most  critical 
upon  the  question  of  the  disposition  which  should  be  made 
of  Schleswig-Holstein,  then  held  by  those  two  states  conjointly 
and  entirely  independently  of  the  German  confederacy,  the 
Diet  was,  therefore,  easily  persuaded  by  Austria  to  assume 
the  settlement  of  the  dispute  and,  when  Prussia  resisted  this 
unwarranted  stretch  of  its  powers,  to  order  the  mobilization  of 
the  armies  of  the  confederated  princes  against  Prussia.  This 
occurred  on  the  14th  of  June,  1866.  The  Prussian  ambassa- 
dor in  the  Diet  immediately  pronounced  this  resolution  to  be  a 
violation  of  the  constitution  of  the  confederacy,  and  declared 
that  Prussia  would  regard  the  constitution  as  broken  and  no 
longer  binding.  At  the  same  moment  he  said  :  "  His  Majesty, 
my  King,  will  not  regard  the  national  foundation  upon  which 
the  confederacy  rested  as  destroyed  with  the  extinction  of  the 
confederacy.  Prussia  holds  fast,  on  the  contrary,  to  these 
foundations,  and  to  the  unity  of  the  German  nation  under  the 
transitory  forms  of  its  expression."  *  The  institutional  bond 
of  connection  between  the  German  states  was  now  rent  in 
twain,  and  each  stood  for  itself  with  such  alliances  as  it 
might  be  able  by  way  of  diplomacy  to  secure.  The  princes 
might  go  with  Austria,  and  probably  would ;  but  the  people 
now  looked  to  Prussia  for  the  establishment  of  German  unity 
and  the  organization  of  the  national  popular  state.  Prussia 
was  therefore  in  position  to  cut  the  sinews  of  the  princely 
power  everywhere.  She  followed  up  her  advantage  with 
great  wisdom  and  energy.  On  the  15th  of  June  the  Prus- 
sian government  addressed  identical  ultimata  to  the  govern- 

1  Schulthess,  Europaischer  Geschichtskalender,  1866,  S.  90;  Ghillany,  Diplo- 
matisches  Handbuch,  Bd.  Ill,  S.  208. 


n6  Formation  of  the  Constitutions. 

ments  of  Saxony,  Hanover  and  Electoral  Hesse,  demanding 
the  demobilization  of  their  armies  and  their  assent  to  the 
summoning  of  the  "German  Parliament."1  On  the  16th  it 
issued  a  manifesto  to  Germany,  and  ordered  the  Prussian 
troops  to  distribute  the  same  among  the  people  in  the  states 
which  they  might  invade.  The  manifesto  contains  this  sig- 
nificant clause  :  "  Only  the  basis  of  the  confederation,  the 
living  unity  of  the  German  nation,  is  left  ;  and  it  is  the 
duty  of  the  governments  and  the  people  to  find  for  this 
unity  a  new  and  vigorous  expression."  2  On  the  same  day 
Prussia  addressed  identical  notes  to  the  governments  of  all 
the  states  north  of  the  river  Main,  except  Hanover,  Saxony, 
Electoral  Hesse,  Hesse  Darmstadt,  and  Luxemburg,  contain- 
ing a  proposition  for  an  alliance,  which  was  accepted  by  all, 
except  Saxe-Meiningen  and  Reuss  elder  line. 

The  triumph  of  Prussia  in  the  trial  of  arms  resulted  in 
the  absorption  of  Hanover,  Electoral  Hesse,  Nassau  and 
Frankfort,  and  in  the  accession  of  all  the  other  German 
states  north  of  the  Main  to  the  alliance  agreed  upon,  on  the 
1 8th  of  the  previous  August,  between  Prussia,  Saxe-Weimar, 
Oldenburg,  Brunswick,  Saxe-Altenburg,  Saxe-Coburg-Gotha, 
Anhalt,  Schwartzburg-Sonderhausen,  Swartzburg-Rudolstadt, 
Waldeck,  Reuss  younger  line,  Schaumburg-Lippe,  Lippe, 
Liibeck,  Bremen  and  Hamburg.  These  remaining  states 
were  Mecklenburg-Schwerin,  Mecklenburg-Strelitz,  Reuss 
elder  line,  Saxe-Meiningen,  Saxony  and  Hesse-Darmstadt. 
These  twenty-two  states  now  pledged  themselves  to  an  offen- 
sive and  defensive  alliance,  and  agreed  to  place  their  military 
power  under  command  of  the  King  of  Prussia.  They  pledged 
themselves,  furthermore,  to  secure  the  formation  of  a  consti- 
tution of  perpetual  union  between  themselves,  based  upon 
the  principles  already  put  forward  by  Prussia  in  the  Confed- 
erate Diet.     To  that  end,  they  agreed  to  send  representatives, 

1  Schulthess,  Europaischer  Geschichtskalender,  1866,  S.  94. 

2  Ghillany,  Diplomatisches  Handbuch,  Bd.  Ill,  s.  210. 


The  Constitution  of  the  German  Empire.       117 

appointed  by  themselves,  to  Berlin,  who  should  draft  a  con- 
stitution ;  to  cause  the  election  of  members  to  a  popular  con- 
vention, upon  the  principles  of  universal  suffrage  and  direct 
vote ;  to  call  the  convention  together  and  lay  before  it  the 
proposed  constitution,  and  in  agreement  with  it  to  establish  the 
same.1  The  alliance  was  to  terminate  upon  the  18th  of  August, 
1867,  one  year  from  the  date  of  its  formation.  If,  therefore, 
the  constitution  should  not  be  established  before  this  date, 
nor  the  alliance  renewed,  the  German  states  would  be,  after 
this  date,  entirely  disconnected  from  each  other.  If,  on  the 
other  hand,  the  constitution  should  be  established  before  this 
date,  it  would  take  the  place  of  the  alliance. 

The  several  state  executives  began  the  fufilment  of 
their  obligations  under  the  treaty  by  laying  before  the  leg- 
islatures of  their  respective  states  the  draft  of  the  law  of 
suffrage  and  elections  for  the  choice  of  the  members  to  the 
popular  convention,  as  agreed  upon  in  the  treaty.  In  the 
discussion  of  the  bill  in  the  lower  house  of  the  Prussian 
legislature,  the  idea  was  advanced  that  the  constitution  agreed 
upon  between  the  body  of  representatives  appointed  by  the 
governments  {i.e.  executives)  of  the  several  states  and  the 
body  of  representatives  elected  by  the  people  of  all  the  states, 
must  be  submitted  to  the  Prussian  legislature,  and  conse- 
quently to  the  legislatures  of  all  the  other  states,  for  ratifica- 
tion, on  the  ground  that  it  might,  and  undoubtedly  would, 
alter  many  provisions  of  the  Prussian  constitution  by  the 
withdrawal  of  powers  from  that  state  to  the  advantage  of  the 
union,  and  that  such  alteration  could  not  be  legally  effected 
except  by  agreement  of  the  legislature  as  well  as  of  the  King 
thereto.  In  other  words,  the  Prussian  legislature  proposed  to 
degrade  the  convention  of  popular  representatives  from  the 
position  of  a  resolving,  constituent  body  to  that  of  a  merely 
deliberative  and  recommending  body.2     It  seems  to  me  that 

1  Laband,  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  15  ff.     2  Ibid.  S.  iS  ff. 


1 1 8  Formation  of  the  Constitutions. 

the  proposition  reduced  the  body  of  governmental  representa- 
tives to  the  same  position,  although  the  commentators  do  not 
dwell  upon  this  point.  The  Prussian  legislature  insisted  upon 
this  principle  and  procedure,  and  the  allied  governments  {i.e. 
executives)  gave  way.  The  delegates  appointed  by  the  govern- 
ments met  in  Berlin,  on  the  1 5th  of  December,  1866,  and  framed 
a  constitution  for  the  North  German  Union.  The  representa- 
tives elected  by  the  people  were  called  by  the  Prussian  King, 
by  authority  from  the  allied  governments,  to  assemble  in  Ber- 
lin on  the  24th  of  February,  1867.  The  draft  of  the  consti- 
tution was  laid  before  them.  They  amended  it  in  forty-one 
points,  adopted  it,  and  returned  it  as  adopted  to  the  body 
which  drafted  it.  The  vote  in  the  convention  was  230  to  53. 
They  voted  by  heads,  not  by  states  ;  were  uninstructed  ;  and  a 
simple  majority  was  all  that  was  necessary,  according  to  their 
rules  of  procedure,  for  the  validity  of  their  acts.  The  rep- 
resentatives of  the  governments  approved  the  changes,  and 
unanimously  resolved  to  accept  the  constitution  as  returned 
to  them  by  the  convention.1  It  was  then  laid  by  the  gov- 
ernments (i.e.  the  executives)  of  the  states  before  their 
respective  legislatures,  and  ratified  by  them  all  in  the  man- 
ner prescribed  in  each  for  making  constitutional  changes. 
The  1  st  of  July,  1867,  is  the  date  at  which  the  new  consti- 
tution went  into  effect. 

This  was  the  constitution  of  the  North  German  Union,  not 
yet  of  the  German  Empire.  The  states  of  Bavaria,  Wurt- 
temberg,  Baden  and  Hesse  south  of  the  Main  were  still  out- 
side of  this  Union.  Immediately  following  the  peace  with 
Austria,  in  1866,  these  states  had  formed  offensive  and  defen- 
sive alliances  with  Prussia;  and  after  July  1,  1867,  it  was  con 
sidered  that  the  North  German  Union  was  the  legal  sue 
cessor  to  the  rights  and  duties  of  Prussia  in  these  treaty 
relations.     These  connections  were  strengthened  and  made 

1  Laband,  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  23  ff. 


The  Constitution  of  the  German  Empire.       119 

closer  by  the  "Zollverein"  of  the  8th  of  July,  1867;  whereby 
these  states  entered  into  a  customs  union  with  the  North 
German  Union  and  created  a  sort  of  government  for  the 
administration  of  the  customs. 

The  attempt  of  France  to  prevent  the  complete  union  of 
all  the  German  states  into  one  national  state,  precipitated 
that  union.  At  the  moment  of  the  triumph  of  the  German 
arms  over  those  of  France,  the  King  of  Bavaria  took  the  initi- 
ative.1 The  President  of  the  North  German  Union,  the 
King  of  Prussia,  was  already  empowered,  by  the  second  para- 
graph of  the  seventy-ninth  article  of  the  North  German  con- 
stitution, to  lay  propositions  before  the  legislature  of  the 
North  German  Union  for  the  entrance  of  the  South  German 
states  or  any  of  them  into  the  Union  ;  which  entrance  would 
be  accomplished,  so  far  as  the  North  German  Union  was 
concerned,  by  a  legislative  act.  During  the  course  of  the 
month  of  November,  1870,  the  President  of  the  North  Ger- 
man Union  entered  into  treaties  with  the  Grand  Dukes  of 
Hesse  and  Baden  and  with  the  Kings  of  Wiirttemberg  and 
Bavaria,  which  contained  the  articles  of  union  of  these  states 
with  the  North  German  Union  and  the  pledge  to  establish  the 
German  Empire  on  the  1st  of  January,  1871.  These  treaties 
were  submitted  by  these  respective  Princes  to  the  legislatures 
of  their  respective  states  and  were  ratified  in  the  manner 
prescribed  by  the  constitutions  of  these  respective  states  for 
making  constitutional  changes.  The  constitution  of  the 
North  German  Union  already  specially  provided  for  this 
case,  in  Art.  79,  authorizing  the  Federal  Council  and  Diet  to 
ratify  such  agreements  by  way  of  legislation.  The  constitu- 
tion of  the  German  Union  or  the  German  Empire  was  thus, 
at  first,  contained  in  several  instruments.  This  was  clumsy 
and  confused.  The  union  of  the  several  instruments  into 
one  was  manifestly  necessary.    After  the  representatives  from 

1  The  diary  of  the  Emperor  Frederic  seems  to  show  that  he  did  so  under 
considerable  pressure  from  the  Prussians. 


1 20  Formation  of  the  Constitutions. 

the  new  states  had  appeared  in  both  the  Federal  Council 
{BundesratJi)  and  Diet  {Reichstag),  the  chancellor  proposed 
a  revision  of  the  constitution  as  to  form.  This  was  carried 
by  great  majority  in  both  bodies.  No  new  provisions  were 
introduced  into  the  organic  law,  and  no  existing  provisions 
were  modified.1  The  revision  was,  we  may  say,  wholly 
formal.  It  bears  the  date  April  16,  1871,  while  the  birth 
moment  of  the  Empire  must  be  placed  at  January  1,  pre- 
ceding.2 

Such  was,  in  brief,  the  history  of  the  formation  of  the  con- 
stitution of  the  present  German  Empire.  The  question  of 
political  science  now  is  :  Where  is,  or  where  was,  the  sover- 
eignty, the  original  organization  of  the  German  state,  upon 
which  the  constitution  rests,  and  from  which  it  derives  its 
legitimacy  and  legal  force  ?  Three  different  organizations  or 
classes  of  organizations  participated  in  the  formation  of  the 
constitution  of  the  North  German  Union,  viz ;  the  govern- 
mental heads  of  the  several  states,  i.e.  the  Princes  of  the 
nineteen  so-called  monarchic  states  and  the  Senates  of  the 
three  free  cities  ;  the  representatives  of  the  people  of  the 
North  German  states  assembled  in  one  Convention  Parlia- 
ment ;  and  the  legislatures  of  the  several  states.  When  the 
North  German  Union  was  expanded  into  the  German  Em- 
pire by  the  entrance  of  the  South  German  states  into  the 
Union,  three  classes  of  organizations  again  participated,  viz; 
the  governmental  heads  of  the  North  German  Union  and  the 
South  German  states ;  the  Federal  Council  and  Diet  of  the 
North  German  Union ;  and  the  legislatures  of  the  South 
German  states  ;  these  legislatures  acting,  however,  in  all 
these  cases  in  the  manner  prescribed  by  the  constitutions 
of  these  respective  states  for  making  constitutional  changes. 

1  Except  a  clause  providing  for  the  constitution  of  a  committee  in  the  Bundes- 
rath  for  foreign  affairs. 

2  Laband,  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  36  ff.  ;  Schulze, 
Lehrbuch  des  deutschen  Staatsrechts,  Erstes  Buch,  S.   168  ff. 


The  Constitution  of  the  German  Empire.       1 2 1 

Which  now  of  these  organizations  or  classes  of  organiza- 
tions represented  the  sovereign,  the  German  state?  Which 
ordained  the  constitution,  and  which  were  merely  the  orna- 
mental and  theatrical  addenda?  If  we  take  a  purely  juristic 
view  of  the  subject,  —  i.e.  if  we  start  with  the  condition  exist- 
ent just  after  the  dissolution  of  the  German  confederacy  in 
1866,  as  the  normal  condition,  and  proceed  upon  the  principle 
that  legal  authority  must  be  found  for  every  act  done  in  reach- 
ing: the  consummation — -then  we  come  to  the  conclusion  that 
the  separate  states,  each  sovereign  and  independent,  first 
formed  an  international  league  of  limited  duration  and  prom- 
ised to  establish  a  state  in  which  their  separate  sovereignties 
should  become  a  united  sovereignty ;  that  the  new  sover- 
eignty upon  which  the  present  constitution  rests  therefore 
came  into  existence  through  a  voluntary  merging  of  the  sov- 
ereignties and  of  parts  of  the  governmental  powers  of  twenty- 
five  states  into  one  state  and  one  government.1  According 
to  this  view,  the  new  state  was  organized  in  the  body  rep- 
resenting the  original  states  in  their  organic  capacity,  i.e.  in 
the  Federal  Council  (Bundesratk)?  The  Convention  Parlia- 
ment, the  Diet,  and  the  state  legislatures  had  no  constitu- 
ent powers,  only  ratifying  powers. 

I  find  two  great  difficulties  with  this  view,  the  one  histor- 
ical and  the  other  technical.  In  the  first  place,  it  ignores  the 
revolutionary  character  of  the  conditions  out  of  which  the 
North  German  Union  and  its  expansion,  the  German  Em- 
pire, sprang.  When  the  Diet  of  the  German  confederacy 
threatened  Prussia  with  coercion,  and  Prussia  seceded  from 
the  legally  "  indissoluble  "  union,3  and  issued  her  ultimata  to 
the  state  governments  and  her  call  to  the  German  people,  it 
seems  to  me  that  she  abandoned  legal  ground  and  made 
appeal  to  power.  It  was  no  longer  "  Rechtsfrage,"  but 
"Machtfrage."     Legal  methods  and  processes  had  been  tried 

1  Laband,  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  32.         2  Ibid.  S.  88. 
8  Deutsche  Bundesate,  Art.  5,  Schlussacte. 


122  Formation  of  the  Constitutions. 

until  it  was  found  that  they  could  furnish  no  solution  to 
the  existing  complications  and  no  satisfaction  to  the  existing 
needs.  The  moment  had  arrived,  in  the  development  of  the 
political  history  of  Germany,  for  the  change  not  only  of  the 
form  of  government,  but  also  of  the  form  of  state.  The  sov- 
ereignty was  not  as  a  fact  where  the  confederate  constitution 
recognized  it  to  be.  Fact  and  law  were  in  conflict.  Fact 
could  not  give  way,  and  law  would  not.  Prussia's  justification 
stands  firm  upon  grounds  of  political  morality ;  but,  measured 
by  the  existing  principles  of  legality,  she  was  guilty  of  rebel- 
lion. Only  the  successful  appeal  to  the  ordeal  of  battle  could 
change  the  rebellion  into  revolution  and  become  the  founda- 
tion of  a  new  legality.  What  can  Laband  himself,  the  thor- 
oughly juristic  interpreter  of  the  history  of  the  formation  of 
the  constitution,  mean  other  than  this,  in  that  beautiful  sen- 
tence on  the  tenth  page  of  his  great  work  on  the  public  law  of 
Germany,  which  reads:  "darin  liegt  die  historish-politische,  die 
sittliche  Berechtigung  des  Krieges  von  1866,  dass  er  nicht  im 
Sonderinteresse  Preussens,  sondern  in  dem  Gesammtinteresse 
Deutschlands  gefiihrt  wurde  und  dass  von  Anfang  an  nicht  die 
Vergrosserung  Preussens,  sondern  die  Erlosung  Deutschlands 
von  dem  politischen  Elend,  welches  die  Vertrage  von  18 15 
iiber  dasselbe  gebracht  haben,  das  hohe  Ziel  des  Kampfes 
war."  But  if  this  be  the  true  view,  then  we  must  treat  the 
formation  of  the  German  state  upon  which  the  constitution 
rests  as  a  spontaneous  rallying  of  forces  about  a  natural 
centre  of  unity,  following  natural  principles  of  attraction 
and  repulsion,  and  using  the  forms  and  fictions  of  existing, 
or  once  existing,  legality  so  far  as  possible  in  the  attainment 
of  the  transcendent  purpose.1  We  must  not,  then,  take  the 
form  for  the  substance.  In  this  great  act  the  German 
princes  and  the  several  state  legislatures  were  but  the  repre- 
sentatives of  the  German  people  in  their  historical  organiza- 

1  See  Jellinek,  Gesetz  und  Verordnung,  S.  264  ff. 


The  Constitution  of  the  German  Empire.       123 

tions,1  and  the  Convention  Parliament  was  the  representative 
of  the  German  people  in  their  newly  found  totality.  The 
German  people  were,  therefore,  the  ultimate  sovereign  in 
the  new  system  ;  and  they  put  to  themselves,  under  three 
forms  of  organization,  the  question  of  the  adoption  of  the 
constitution,  in  order  that  it  might  escape  the  errors  and 
imperfections  of  haste  and  one-sidedness,  and  correspond 
to  the  wants  and  wishes  of  the  people  as  a  whole  and 
in  every  part.  We  must  not,  then,  call  either  of  these 
classes  of  organizations  sovereign,  and  the  others  only  rati- 
fying bodies.  If  it  had  come  to  a  conflict  between  them, 
one  could  have  triumphed  over  the  other  two,  or  two  over 
one,  only  by  the  strength  of  the  popular  support ;  i.e.  only 
by  the  people  renouncing  the  two  or  the  one  as  unfaith- 
ful representatives  of  the  people.  If  the  people  resident 
within  the  state  of  Prussia  had  undertaken  to  prevent  the 
formation  of  the  imperial  constitution,  either  through  their 
King  or  their  legislature  or  through  the  Convention  Parlia- 
ment, they  could  undoubtedly  have  clone  so,  since  they 
constituted  the  great  majority  of  the  German  people  ;  but 
if  the  people  resident  within  any  other  state  had  made 
this  attempt  through  those  bodies  in  which  the  rule  of  the 
simple  popular  majority  was  not  followed,  i.e.  in  the  Federal 
Council  and  in  the  combined  legislatures,  let  the  fate  of 
Hanover,  Hesse,  Nassau  and  Frankfort  answer  as  to  what 
might  have  been  the  result. 

The  technical  difficulty  which  I  find  with  the  juristic  view 
leads  to  the  same  results.  If  either  one  of  these  three  forms 
of  organization  was  sovereign,  then  it  must  have  been  able 
to  do  what  it  would,  as  well  as  to  prevent  what  it  would.  If 
the  test  of  sovereignty  is  only  the  power  to  propose  and  pre- 
vent, then  each  of  the  three  forms  of  organization  was  sov- 
ereign and  equally  so.     The  test  of  sovereignty  is  rather  the 

1  Laband,  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  89. 


124  Formation  of  the  Constitutions. 

power  to  overcome  all  resistance  and  attempted  prevention. 
Now  one  of  three  could  have  had  such  power  only  when  sup- 
ported by  the  people  in  sufficient  force  and  with  sufficient 
determination  to  overcome  the  rest ;  and  that  would  signify 
that  the  people  were  the  sovereign,  the  state,  and  had  re- 
jected the  other  forms  of  organization.  My  view  is,  there- 
fore, that  the  German  people  resident  within  the  twenty-two 
purely  German  states  had,  by  1866,  reached  a  point  in  their 
national  development  where  the- ethnical  unity  was  bound 
to  pass  over  into  political  unity ;  that  the  German  state 
had  become  existent  subjectively,  as  idea  in  the  conscious- 
ness of  the  people,  and  that  the  impulse  to  objectify  the 
idea  in  institutions  and  laws  was  the  force  which  employed 
the  customary  forms  of  legality  in  the  attainment  of  the 
result  ;  but  the  original  power  was  in  that  force,  not  in 
those  forms.  It  was  fortunate  for  the  continued  existence 
of  these  that  they  proved  elastic  enough  to  permit  the 
entrance  of  that  force.  It  was  not  compelled,  thus,  to  cast 
them  aside  and  create  its  own  more  natural  forms.  The 
task  of  the  commentator,  however,  is  made  much  more  diffi- 
cult on  account  of  this  fact.  He,  and  those  who  read  him, 
are  obliged  to  preserve  a  constant  tension  of  mind  in  distin- 
guishing these  forms  when  filled  with  the  new  power,  from 
the  same  as  containing  only  the  old  power.  Both  he  and 
they  almost  inadvertently  glide  into  the  juristic  processes, 
and,  delighted  with  a  show  of  logical  exactness,  forget  that 
the  juristic  theory  will  not  contain  the  demonstrations  of  war 
and  violence  and  the  evolutions  of  power  with  which  the 
birth  moment  of  the  new  state  was  attended.1 

1  Jellinek,  Die  Lehre  von  den  Staatenverbindungen,  S.  262. 


The  French  Constitution.  125 


CHAPTER   IV. 

THE    HISTORY    OF    THE    FORMATION    OF    THE    FRENCH    CON- 
STITUTION. 

The  Carolingian  constitution  is  again  the  point  of  depart- 
ure in  tracing  this  development.  The  dissolution  of  the 
theocratic  imperium  in  843  gave  to  the  French  state  its  sub 
stantial  territorial  and  ethnical  basis,  but  left  it  disorganized 
politically.  The  King,  the  marquises,  the  counts  and  the 
bishops  remained  ;  but  they  were  only  officers,  government, 
not  the  state,  not  the  sovereign.  The  Emperor  alone  was  the 
state,  for  the  real  monarchic  state  must  rest  upon  a  theo- 
cratic foundation,  must  be  jure  divino.  When  the  state  is 
purely  secular,  it  can  never  be  monarchic  except  in  appear- 
ance. It  may  have  a  monarchic  government,  but  it  itself 
is  either  aristocratic  or  democratic.  The  theocratic  principle, 
as  we  know,  was  wanting  in  the  kingship  ;  and  although  the 
post-Carolingian  King  claimed  the  rights,  powers  and  pre- 
rogatives of  the  Emperor,  the  marquises,  counts  and  bishops 
denied  and  successfully  resisted  the  claim  under  the  principle, 
as  we  of  to-day  would  express  it,  that  they  had  derived  their 
offices  and  powers  from  the  same  source  as  the  King  himself, 
viz;  from  the  Emperor,  the  state,  and  that  therefore  their 
tenures  and  prerogatives  were  equally  sacred  with  those  of 
the  King. 

The  officials  of  the  Empire  now  laid  claim,  in  the  period 
of  the  dissolution  of  the  Empire,  to  the  rights  and  powers 
of  princes  ;  i.e.  of  autonomous  government  in  their  respective 
seigneuries.  Thus  the  dissolution  of  the  imperial  sovereignty 
left  immediately  the  federal  form  of  government  without  any 


126  Formation  of  the  Constitutions. 

objective  organization  of  the  state,  but  with  the  unorganized 
material  of  an  aristocratic  state.  The  powerlessness  of  the 
King  to  meet  successfully  the  Norman  invasions  furnished 
the  occasion,  in  fact,  made  it  necessary,  for  the  aristocratic 
state  to  give  itself  objective  organization.  This  was  finally 
accomplished  in  the  assembly  of  the  princes,  both  eccle- 
siastical and  secular,  at  Senlis,  in  the  year  987,  where  they 
in  union  constituted  themselves  as  sovereign,  as  state,  dis- 
carded the  claims  of  a  Carolingian  pretender  and  elected 
Hugh  Capet,  duke  of  the  Isle  de  France,  King.1 

The  royal  government  was  more  fortunate  in  France  than 
in  Germany.  The  tendency  of  the  aristocratic  state  towards 
excessive  decentralization  in  government  met  with  a  far  more 
decided  and  permanent  check  in  France  through  the  develop- 
ment of  the  democracy,  than  in  Germany  through  the  re-es- 
tablishment of  the  imperium.  For  the  first  hundred  years, 
however,  the  Capetians  merely  held  their  own.  About  all  the 
advance  they  can  be  said  to  have  made  was  their  successful 
defence  of  the  royal  tenure  against  republicanization.  The 
crusades  of  the  eleventh  century  relieved  the  King  of  the 
hostile  presence  of  a  large  part  of  the  seigneurs,  who  went 
forth  upon  those  eastern  campaigns  never  to  return.2  The 
confiscations  of  the  territories  of  the  Duke  of  Normandy 
and  the  Count  of  Toulouse  at  the  beginning  of  the  thirteenth 
century,  increased  immensely  the  power  of  the  crown.3  The 
King  followed  the  policy  of  union  with  the  bourgeoisie  against 
the  seigneurs.  The  democracy  was  becoming  conscious  of 
itself  and  was  seeking  its  first  form  of  organization  about  the 
royal  centre.  In  the  first  decades  of  the  fourteenth  century 
the  union  of  the  King  and  people  seemed  on  the  point  of 
consummation.  The  King,  however,  pressed  forward  too  rap- 
idly and  recklessly.     The  people  needed  a  longer  training,  a 

1  Martin,  Histoire  de  France,  Tome  II,  pp.  547  ff. 

2  Ibid.  Tome  III,  p.  193. 

8  Ibid.  Tome  III,  p.  585;  Tome  IV,  p.  150. 


The  French  Constitution.  127 

more  gradual  development.  The  reaction  began  before  the 
death  of  Philip  the  Fair.1  His  own  inconstancy  to  the  pop- 
ular cause,  the  misfortunes  of  his  family,  and  the  descent  of 
the  crown  to  the  Valois  branch  of  the  Capetians  in  1328, 
checked  the  organization  of  the  democratic  state  about  the 
King  as  the  sole  and  exclusive  organ  of  government ;  i.e. 
checked  the  development  of  what  is  termed  by  the  publicists 
the  absolute  monarchy,  which  is,  as  I  have  already  demon- 
strated, the  democratic  society  with  monarchic  government. 
In  consequence  of  this  check  the  aristocratic  state  revived  in 
France.  The  Valois  Kings  turned  their  backs  upon  the  bour- 
geoisie and  restored  to  the  seigneurs  the  autonomy  of  which 
the  older  line  had  with  so  much  pains  and  persistence  suc- 
ceeded in  partially  depriving  them.2  The  decentralization  of 
the  government  was  of  course  the  result.  In  this  condition 
of  weakness  the  French  state  came  to  meet  the  century  of  war 
with  England.  The  aristocratic  state  was  on  the  point  of  dis- 
solution when  the  democracy  of  France  came  to  the  rescue. 
This  was  the  political  significance  of  the  appearance  of  the 
Pucelle  in  1429.3  The  King,  Charles  VII,  did  not  comprehend 
it,  but  his  successor,  Louis  XI,  did.4  Louis  XI  cultivated  the 
democracy  with  great  assiduity  and  made  the  crown  the  bearer 
of  its  power  against  the  aristocracy.  From  Louis  XI  to  Louis 
XVI,  i.e.  for  three  hundred  years,  the  political  system  of 
France  was  the  unorganized  democratic  state,  i.e.  the  demo- 
cratic  society,  with  monarchic  government,  i.e.  the  demo- 
cratic society  under  monarchic  organization.  It  was  this 
which  preserved  France  from  the  disunity  of  Germany  dur- 
ing the  period  when  the  French  democracy  was  coming  to  the 
consciousness  of  the  state,  and  was  passing  through  the  school 
of  preparation  necessary  to  develop  the  capacity  for  the  demo- 
cratic organization  of  the  state. 

1  Martin,  Histoire  de  France,  Tome  IV,  p.  5 1 2. 

2  Ranke,  Franzosische  Geschichte,  Bd.  I,  S.  37  ff. 

8  Ibid.  S.  44;    Kitchin,  History  of  France,  Vol.  I,  pp.  522  ft 
4  Kitchin,  History  of  France,  Vol.  II,  p.  100. 


128  Formation  of  the  Constitutions. 

At  length,  in  1789,  the  moment  for  this  organization  of 
the  state  arrived.  The  body  called  together  by  the  King  as 
"  Etats  generaux "  transformed  itself  into  a  national  con- 
stituent assembly ;  i.e.  the  democratic  state  gave  itself  its 
natural  form  of  organization.  The  first  written  constitution 
of  democratic  France,  viz;  that  of  1791,  was  framed  and 
ordained  by  this  body.  This  body  was,  therefore,  the  ulti- 
mate and  sovereign  organization  of  the  state.  The  accep- 
tance of  this  constitution  by  the  King  was  in  fact  but  an 
appearance-saving  form.  It  could  still,  however,  be  claimed 
by  the  royal  jurists  that  the  assembly  only  framed  the  consti- 
tution, while  the  act  of  the  King  was  the  real  ordaining,  i.e. 
sovereign,  act.  This  claim,  thrown  in  the  face  of  the  people, 
had  no  small  influence  in  developing  the  idea  and  feeling 
that  the  King  must  necessarily  be  made  away  with,  be- 
fore the  sovereignty  of  the  democratic  state,  under  its  own 
chosen  form  of  organization,  could  be  placed  beyond  dispute. 
This  was  the  scientific  meaning  of  the  dethronement  and  exe- 
cution of  the  King.  The  second  convention,  viz;  that  of 
1792,  represented  the  jacobinistic  view,  i.e.  the  extreme  demo- 
cratic view  of  the  state.  It  did  not  regard  itself  as  a  constit- 
uent, but  only  as  an  initiating,  body.  It  submitted  the  con- 
stitution which  it  drafted  to  the  direct  universal  suffrage 
of  the  people.1  It  thereby  recognized  the  people,  organ- 
ized in  their  respective  electoral  districts,  as  the  sovereign, 
the  state.  This  is  the  doctrine  of  the  plebiscite  pure  and 
simple.  The  introduction  of  this  principle  into  the  French 
practice  cannot  then  be  charged  upon  Bonaparte.  He  found 
it  there.  It  was  the  legacy  of  jacobinism  to  the  Empire,  and 
the  successful  use  which  Bonaparte  made  of  it  demonstrates 
the  near  approach  in  principle  of  the  extreme  democracy 
to  real  Caesarism.  The  constitution  of  1793,  framed  by  the 
convention  and  ordained  by  the  plebiscite,  was  never  put  in 

1  Lebon,  Das  Staatsrecht  der  franzosischen  Republik,  S.  12. 


The  French  Constitution.  129 

force.  The  need  of  the  state,  at  that  moment,  was  for  a 
stronger  government  than  this  constitution  created.  The 
same  convention  accordingly  framed  another  constitution, 
two  years  later,  constructing  a  more  powerful  government, 
and  submitted  this  again  to  the  plebiscite.  It  was  approved 
by  an  overwhelming  majority  ;  and  by  the  help  of  the  military, 
commanded  by  the  young  artillery  officer  of  Toulon,  Bona- 
parte, it  was  put  into  operation.1  The  new  government  did 
not,  still,  prove  strong  enough  for  the  necessities  of  the  state. 
In  1799,  Bonaparte  suppressed  it  with  his  soldiers  and  ap- 
pealed to  the  plebiscite  for  his  justification.  His  doctrine 
also  was,  therefore,  that  the  sovereign,  the  state,  is  the 
people  organized  in  their  electoral  assemblies  or  districts. 
The  constitution  which  he  submitted  was  ratified  by  the 
popular  vote,  3,011,007  in  favor  of  it,  to  1562  against  it.2 
The  amendment  of  this  constitution  in  1802,  and  finally  the 
establishment  of  the  imperial  constitution  of  1804,  rested 
likewise  upon  the  plebiscite.  In  the  imperial  system,  there- 
fore, the  jacobinistic  doctrine,  that  the  state  is  the  people 
organized  in  their  voting  precincts,  was  preserved. 

After  the  overthrow  of  Bonaparte  and  the  restoration 
of  the  Bourbons,  the  first  constitution,  that  of  18 14,  pro- 
ceeded wholly  from  the  King.3  The  doctrine  which  lay  at 
the  base  of  this  constitution  was,  therefore,  that  the  state 
was  organized  in  the  King.  The  King  shrewdly  applied  this 
principle,  without  theoretical  enunciation,  in  amending  the 
constitution  in  some  points  to  meet  the  popular  views.4  The 
successor  of  Louis  XVIII  was  not  so  wise.  Charles  X  pro- 
claimed the  sovereignty  of  the  King  over  the  constitution, 
and  undertook  to  exercise  the  same  in  the  issue  of  measures 
obnoxious  to  the  people.5  The  revolution  of  1830  was  the 
result. 

1  Lebon,  Das  Staatsrecht  der  franzosischen  Republik,  S.  13 

2  Ibid.  S.  14.  3  Ibid.  S.  15. 

4  Lavallee,  Histoire  des  Francois,  Tome  V,  p.  1 03  ff. 
6  Ibid.  pp.  352  ff. 


130  Formation  of  the  Constitutions. 

The  legislature  created  by  the  Bourbon  constitution  antic- 
ipated the  people,  or  rather  the  populace ;  revised  the  con- 
stitution, and  demanded  its  acceptance  by  Louis  Philippe  as 
the  condition  of  his  elevation  to  the  throne  by  the  suffrage  of 
the  legislature.  He  accepted  it,  and  thereby  acknowledged 
the  sovereignty  of  the  people  as  organized  in  the  legislature. 

This  solution  of  the  question  of  the  organization  of  the 
state  could  not,  however,  be  permanently  satisfactory.  In  the 
first  place,  the  qualification  for  suffrage  was  so  high  that  the 
legislature  represented  only  about  300,000  voters ; 2  and,  in 
the  second  place,  the  King  had  a  veto  upon  all  acts  of  the 
legislature,  whether  they  were  amendments  to  the  constitu- 
tion or  ordinary  statutes.  The  resistance  of  the  King  to  the 
extension  of  the  suffrage  —  an  extension  which  would  have 
made  the  legislature  a  truer  organization  of  the  state  —  pro- 
voked the  revolution  of  1848.2  The  provisory  government, 
which  assumed  power  after  the  expulsion  of  the  King,  called 
upon  the  people  to  elect,  by  universal  suffrage,  members  to  a 
constituent  convention.  This  was  accomplished  during  the 
month  of  April,  and  upon  the  4th  of  May  the  assembly  was 
organized.  It  was  the  sovereign  organization  of  the  state.3 
It  framed  and  ordained  the  constitution  of  1848.  Under  it 
Louis  Napoleon  was  elected  President  of  the  republic. 

But  Napoleon  took  advantage  of  the  weakness  of  the  French 
democracy  for  the  plebiscite,  and  in  his  conflict  with  the  leg- 
islature ignored  the  method  prescribed  in  the  constitution  for 
effecting  changes  in  the  organic  law,  and  appealed  to  the 
people  to  empower  him  by  direct  vote  to  put  in  force  a  con- 
stitution, the  framework  of  which  he  presented  to  them  in  his 
appeal.  That  is,  he  reintroduced  the  principle  that  the  state 
is  the  people  organized  in  their  voting  precincts.  His  appeal 
was  ratified  by  the  people,  and  the  principle  of  the  plebiscite 

1  Lebon,  Das  Staatsrecht  der  franzosischen  Republik,  S.  16,  Anmerkung. 

a  Ibid.  S.  16. 

*  Stern,  Revolution  de  1848,  Tome  II,  pp.  212  ff. 


The  French  Constitution.  131 

upon  the  constitution  re-established.1     At  last  the  imperial 
constitution  of  1852  was  established  by  the  plebiscite?1 

The  overthrow  of  the  Empire  in  1870  and  the  capture  of 
the  Emperor  necessitated  a  provisory  government.  The 
members  of  the  legislative  body  of  the  Empire  representing 
the  constituencies  of  the  city  of  Paris  assumed  power;  issued 
a  call  on  the  8th  of  the  month  (September)  for  the  election, 
by  universal  suffrage,  of  members  to  a  constituent  conven- 
tion ;  fixed  the  day  of  assembly  upon  the  16th  of  the  fol- 
lowing October,  and  designated  the  city  of  Paris  for  the 
place.  The  approach  of  the  German  armies  moved  the  pro- 
visory government  to  send  a  delegate,  Cremieux,  to  Tours, 
to  provide  for  the  event  of  the  severing  of  communica- 
tion between  Paris  and  the  provinces.  It  also  resolved  to 
hasten  the  elections  to  the  convention,  and  appointed  the 
2nd  of  October,  instead  of  the  16th,  for  the  day  of  assem- 
bly. Before  the  20th  of  September,  however,  the  Germans 
had  surrounded  the  city,  cutting  off  all  communication  with 
the  country.  The  delegation  of  the  provisory  government 
at  Tours  was  thus  forced  to  assume  the  government  outside 
of  Paris.  It  annulled  the  order  for  elections  to  a  constituent 
assembly,  and  manifested  the  determination  to  establish  itself 
in  dictatorial  power  for  the  purpose  of  driving  out  the  in- 
vader. The  provinces  of  the  south  and  west,  however, 
immediately  resented  the  action  and  attitude  of  the  Tours 
government,  and  threatened  to  act  upon  their  own  responsi- 
bility. The  government  at  Tours  reconsidered  its  resolution 
annulling  the  elections,  and  ordered  that  these  be  held  upon 
the  day  originally  designated.  The  government  in  Paris  was 
advised  of  this  last  act  by  balloon  communication,  and,  under 
the  influence  of  Gambetta,  annulled  this  second  order  for  elec- 
tions. On  the  8th  of  October  Gambetta  escaped  by  balloon 
from  Paris  and  went  to  Tours.     He  immediately  assumed 

1  Lebon,  Das  Staatsrecht  der  franzosischen  Republik,  S.  1 6  ff. 

2  Ibid.  S.  17. 


132  Formation  of  the  Constitutions. 

the  war  department  and  dictatorial  power,  in  order  to  organize 
the  provinces  for  the  rescue  of  Paris.  But  the  south  revolted. 
The  league  of  the  south  formed  itself  in  Toulouse,  and  Esqui- 
ros  assumed  dictatorial  power  in  Marseilles,  independent  of 
both  Tours  and  Paris.  Gambetta  was  able,  however,  to  over- 
come these  movements,  and,  on  the  2nd  of  November,  the 
Tours  government  issued  the  call  for  the  levee  en  masse  for 
the  expulsion  of  the  invader.  The  advance  of  the  Ger- 
mans compelled  the  overnment  to  withdraw  to  Bordeaux. 
From  this  point,  it  inaugurated  the  campaign  for  the  relief  of 
Paris.  This  was  a  failure,  and  on  the  28th  of  January,  1871, 
Paris  capitulated.  The  Germans  demanded  that  the  provi- 
sory government  at  Paris  should  immediately  order  elections 
to  a  constituent  assembly,  which  should  meet  within  four- 
teen days,  at  Bordeaux,  to  deliberate  upon  the  preliminaries 
to  the  treaty  of  peace.  The  Germans  were  unwilling,  of 
course,  to  treat  with  the  provisory  government,  on  the  ground 
that  the  French  people  might  refuse  to  regard  themselves  as 
bound  by  its  acts.  Pressed  by  the  invader,  the  Paris  govern- 
ment issued  the  decree  for  the  elections  and  ordered  them  to 
be  held  on  the  8th  of  the  following  month  (February).  The 
Paris  government  was,  however,  obliged  to  rely  upon  the 
branch  at  Bordeaux  to  execute  the  decree.  Gambetta  offered 
some  resistance,  but  finally,  on  the  31st  of  January,  sent  out 
the  necessary  order  to  the  proper  officers,  but  commanded  the 
disfranchisement  of  the  Bonapartists.  Of  course  the  Germans 
could  not  permit  this,  for  the  reason  that  the  international  en- 
gagements, which  an  exclusively  republican  assembly  might 
assume,  might  not  be  regarded  by  the  disfranchised  party  as 
binding  upon  them,  in  case  they  should  succeed  again  to 
power.  Bismarck,  therefore,  protested  against  this  measure 
and  the  Paris  government  annulled  it  and  proclaimed  the 
powers  of  the  Bordeaux  branch  withdrawn.  The  elections 
were  held  on  the  8th  of  February,  and  on  the  13th  the  conven- 
tion met  at  Bordeaux.    This  body  was  elected  by  universal 


The  French  Constitution.  133 

suffrage  and,  therefore,  represented  the  whole  people.  It 
took  upon  itself,  first,  the  powers  and  duties  of  government, 
and,  after  six  years  of  existence  in  this  capacity,  it  framed 
and  ordained  the  present  constitution  of  the  French  republic. 

The  French  state,  therefore,  upon  which  the  present  con- 
stitution rests,  is  the  people,  organized  in  national  constituent 
convention. 

It  is  to  be  hoped  that  the  French  democracy  has  finally 
worked  itself  clear  of  the  fallacy  that  the  plebiscite  is  the 
proper  form  of  organization  of  the  state.  The  system  of  the 
plebiscite  is  a  very  subtile  bit  of  political  deception.  Its  dan- 
gerous points  are,  first,  that  the  organization  of  the  people  in 
their  electoral  assemblies  is  a  very  loose  form  of  organization ; 
in  fact,  it  is  not  a  very  great  departure  from  disorganization, 
when  viewed  from  any  central  standpoint.  The  natural  pur- 
pose of  this  kind  of  organization  is  the  selection  of  a  number 
of  persons,  all  of  whom  taken  together  may  possibly  work 
out,  by  interchange  of  opinion,  a  well-digested  view  of  the 
law  and  policy  of  the  state,  but  it  is  not  naturally  adapted  at 
all  for  the  immediate  consideration  and  decision  of  the  princi- 
ples of  that  law  and  policy.  In  the  second  place,  its  employ- 
ment upon  such  subjects  is  dangerous,  because  it  gives  rise 
to  the  popular  notion  that  it  is  no  matter  who  proposes  the 
constitution  or  the  statute,  so  long  as  the  plebiscite  ratifies 
the  same.  This,  as  we  have  seen,  opens  the  way  for  Caesar, 
who,  having  once  attained  the  powers  of  government,  will 
give  the  people  the  alternative  between  ratifying  his  own 
arbitrary  regime  and  the  horrors  of  revolution.  The  body 
which  proposes  the  constitution,  or  the  amendment  of  the 
constitution,  must  be  a  truly  representative  body  of  the  whole 
people  in  order  to  a  true  organization  of  the  democratic  state ; 
and  it  is  then  a  matter  of  little  concern  whether  the  plebiscite 
be  employed  to  ratify  the  work  of  such  a  body  or  not.  Its 
employment  will  more  often  be  hurtful  than  advantageous. 

It  will  thus  be  seen  that  all  four  of  the  states,  whose  con- 


134  Formation  of  the  Constitutions. 

stitutions  I  propose  to  examine  in  the  next  part  of  this  work, 
have  reached  the  democratic  period  of  their  development. 
Two  of  them  are  usually  described  as  monarchies,  but  they 
are  such  only  in  appearance,  and  hardly  that.  A  very  mod- 
erate degree  of  scientific  observation  will  discover  that  we 
have  to  do  in  these  cases  with  old  forms  filled  with  a  new 
force.  In  England  and  Germany  these  old  forms  have  so 
adapted  themselves  to  the  new  content  that  little  would  be 
gained  by  their  destruction.  They  do  somewhat  obscure  the 
vision  of  the  observer;  they  do  offer  a  vantage-ground  for 
resistance  to  the  realization  of  the  new  order;  and  they  do 
confuse,  in  some  degree,  the  organization  of  the  state.  Should 
their  use  for  these  purposes  be  pressed  too  far,  they  will  prob- 
ably be  compelled  to  give  way  to  forms  corresponding  more 
naturally  to  the  existing  conditions  of  power;  but  if  they 
prove  sufficiently  elastic,  they  may  still  furnish  the  names 
and  titles  of  the  new  powers  for  decades,  perhaps  centuries, 
to  come. 


Part    II. 
COMPARATIVE   CONSTITUTIONAL   LAW. 


Book  I. 

THE   ORGANIZATION  OF  THE  STATE    WITHIN  THE 
CONSTITUTION. 

A  complete  constitution  may  be  said  to  consist  of  three 
fundamental  parts.  The  first  is  the  organization  of  the  state 
for  the  accomplishment  of  future  changes  in  the  constitution. 
This  is  usually  called  the  amending  clause,  and  the  power 
which  it  describes  and  regulates  is  called  the  amending  power. 
This  is  the  most  important  part  of  a  constitution.  Upon 
its  existence  and  truthfulness,  i.e.  its  correspondence  with 
real  and  natural  conditions,  depends  the  question  as  to 
whether  the  state  shall  develop  with  peaceable  continuity  or 
shall  suffer  alternations  of  stagnation,  retrogression,  and  revo- 
lution. A  constitution,  which  may  be  imperfect  and  erro- 
neous in  its  other  parts,  can  be  easily  supplemented  and 
corrected,  if  only  the  state  be  truthfully  organized  in  the 
constitution ;  but  if  this  be  not  accomplished,  error  will 
accumulate  until  nothing  short  of  revolution  can  save  the  life 
of  the  state.  I  do  not  consider,  therefore,  that  I  exaggerate 
the  importance  of  this  topic  by  devoting  an  entire  book,  in 
my  arrangement,  to  its  consideration.  The  second  funda- 
mental part  of  a  complete  constitution,  I  denominate  the 
constitution  of  liberty ;  and  the  third,  the  constitution  of 
government.  These  I  shall  treat  in  the  second  and  third 
books  of  this  division  of  my  general  subject. 


138  Organization  of  the  State. 


CHAPTER   I. 

THE    ORGANIZATION    OF    THE    STATE    IN    THE    BRITISH    CONSTI- 
TUTION. 

In  the  absence  of  any  constitutional  law  distinctly  separate 
from  ordinary  statute  law,  enacted  by  a  different  body  and 
written  down  in  a  single  instrument,  we  are  compelled,  in 
regard  to  this  question  as  to  all  other  questions  of  the  Eng- 
lish system,  to  look  to  precedent.  It  is  a  difficult  matter  to 
determine  exactly  what  is  constitutional  law  as  distinguished 
from  ordinary  statute  law,  when  the  enacting  body  in  both 
cases  is  the  same.  We  are  deprived  altogether  of  the  juristic 
test  and  thrown  back  entirely  upon  the  less  exact  tests  of 
political  science  and  comparative  constitutional  law.  But  we 
may  assume,  I  think,  that  the  sovereignty  within  the  consti- 
tution, the  general  principles  of  liberty,  the  form  and  con- 
struction of  the  government,  and  the  character  and  extent  of 
the  suffrage  are  natural  subjects  of  constitutional  law.  Now 
when  the  British  state  comes  to  deal  with  these  questions  it 
treats  them  just  as  it  does  any  question  of  ordinary  law ;  i.e. 
the  Parliament  determines  the  law  which  regulates  them.1 
If  the  two  houses  can  agree,  then  a  simple  majority  of  a 
quorum  in  each  is  all  that  is  necessary  for  such  legislation. 
If  they  cannot  agree,  and  if  the  House  of  Commons  insists 
upon  having  its  own  way,  it  may  cause  the  Crown  to  create 
by  patent  a  sufficient  number  of  new  peers  in  sympathy  with 
its  views  to  carry  the  measure.  If  the  Crown  declines  in  the 
first  instance  to  do  this,  it  is  necessary  only  that  the  ministry 

1  Anson,  Law  and  Custom  of  the  Constitution,  p.  34. 


The  Sovereignty  in  the  British  Constitution.    1 39 

resign,  and  that  the  members  of  the  party  which  it  repre- 
sents in  the  House  of  Commons  refuse  to  form  a  new  ministry. 
This  will  force  the  Crown  to  take  a  ministry  from  the  oppo- 
sition ;  but  such  a  ministry,  not  having  the  support  of  the 
House,  cannot  govern.  The  Crown  will  then  be  obliged 
to  take  another  ministry  from  the  majority,  or  dissolve 
Parliament.  If  it  should  order  dissolution  and  the  constitu- 
encies then  return  the  same  party  in  majority  as  before,  the 
Crown  and  the  Lords  will  be  compelled  to  give  way.1  But 
this  is  exactly  the  course  of  legislation  upon  any  other 
subject,  and  this  is  exactly  the  manner  in  which  the  whole 
of  the  present  constitution  came  to  be  just  what  it  is.  In 
other  words,  the  organization  of  the  state  within  the  con- 
stitution is  the  same  as  was  its  organization  back  of  the 
constitution.  It  is  the  newly  elected  House  of  Commons. 
It  is  the  political  people  organized  through  their  representa- 
tives in  that  House,  chosen  in  view  of  a  particular  principle 
or  measure.  This  is  not  the  plebiscite  in  the  French  sense. 
The  vote  is  not  directly  upon  the  proposition  of  law,  but  for 
persons  who  profess  to  support  or  to  oppose  the  proposition. 
Neither  are  these  persons  bound  by  the  views  of  their 
constituents  as  manifested  in  their  election.  The  English 
plebiscite  thus  avoids  the  dangers  to  which  the  French  prin- 
ciple is  exposed,  at  the  same  time  that  it  secures  a  substantial 
agreement  between  the  people  and  their  representatives. 

There  is  very  great  advantage  in  this  correspondence  be- 
tween the  revolutionary  organization  of  the  state  back  of  the 
constitution  and  its  continuing  organization  within  the  con- 
stitution. A  difference  in  this  respect  is  unnatural  and  arti- 
ficial. The  organization  of  the  state  back  of  the  constitution 
is  the  result  of  a  free  development  in  the  political  society. 
It  may  therefore  be  assumed  to  correspond  with  the  actual 
substance  of  power.     If  now,  when  the  state  provides  for  its 

1  Bagehot,  The  English  Constitution,  p.  295  ff. 


140  Orgajiization  of  the  State. 

own  organization  within  the  constitution,  it  binds  itself  by 
forms  which  limit  its  original  freedom  of  action,  or  if,  on  the 
other  hand,  it  emancipates  itself  from  the  forms  which  guarded 
it  originally  against  accidental  results,  it  will  soon  be  found 
either  that  the  true  development  of  the  state  will  be  hindered, 
or  that  the  state  will  be  driven  into  rash  and  hurtful  experi- 
ments. 

It  is  not  necessary,  however,  to  this  advantageous  corre- 
spondence of  organization  between  the  state  back  of  and  within 
the  constitution,  that  this  organization  should  be,  at  the  same 
time,  the  whole  or  a  part  of  the  government.  In  fact,  there 
are  disadvantages  in  this.  In  the  first  place,  it  is  confusing. 
It  makes  it  difficult  to  determine  what  legislative  measures 
are  to  be  regarded  as  organic  and  relatively  stable  and 
what  are  to  be  regarded  as  ordinary  statutes.  For  example, 
it  is  customary  to  hear  the  phrase  "statutory  Parliament" 
applied  to  the  proposed  Gladstonian  legislature  for  Ireland. 
I  do  not  understand  what  other  kind  of  Parliament  could  be 
legally  created  in  Ireland,  or  in  any  other  part  of  the  British 
dominions  subject  to  the  Parliament  at  Westminster.  I  sup- 
pose it  was  intended  to  indicate  by  the  phrase  that  the 
proposed  Irish  legislature  was  to  be  an  institution  which 
might  be  abolished  by  the  Parliament  at  Westminster ;  but 
every  institution  of  the  British  state  may  be  so  abolished. 
There  is  deception  in  the  phrase.  It  implies  to  an  American 
reader  a  less  independent  institution  than  would  really  be 
thus  constituted.  In  the  second  place,  the  identity  in  organ- 
ization of  the  state  and  the  government,  or  a  part  of  the 
government,  leaves  individual  liberty  a  less  independent 
position  in  the  constitution  than  is  wholly  compatible  with 
its  importance  to  the  welfare  of  society.  It  opens  the  way 
for  the  government  to  encroach  ad  libitum  upon  the  natural 
domain  of  individual  autonomy,  and  leaves  the  individual 
defenceless  against  such  encroachment.  Lastly,  the  identity 
in  organization  of  the  state  and  the  government  renders  a 


The  Sovereignty  in  the  British  Constitution.    141 

federal  system  of  government  impossible.  The  test  of  that 
system  lies  in  the  principle  that  the  central  government  cannot 
destroy  nor  modify  the  local,  nor  the  local  government  the 
central.  Now  this  relation  between  central  and  local  govern- 
ment is  impossible  unless  both  rest  upon  a  common  basis,  i.e. 
the  co-ordination  of  these  independent  governments  as  parts 
of  a  harmonious  political  system  requires  an  organization  of 
the  sovereign,  the  state,  distinct  from  and  supreme  over 
both. 

It  will  thus  be  seen  that  the  organization  of  the  state  within 
the  British  constitution  has  its  points  of  advantage  and  of 
disadvantage.  It  has  consistency  in  character,  absoluteness 
in  power,  precision  in  action  and  facility  in  employment. 
Through  its  correspondence  with  the  revolutionary  organiza- 
tion of  the  state  back  of  the  constitution  on  the  one  side, 
and  with  the  government  on  the  other,  it  receives  the  im- 
pulse to  change  from  below  and  the  disposition  to  conserve 
from  above ;  but  it  risks  everything  upon  the  wisdom,  the 
integrity,  and  the  patriotism  of  the  party  in  majority  in  the 
House  of  Commons.  Should  these  qualities  fail  in  the  make- 
up of  that  body,  the  liberty  of  the  individual  and  the  wel- 
fare of  society  would  inevitably  suffer  violence  and  perhaps 
destruction. 


142  Organization  of  the  State. 


CHAPTER   II. 

THE    ORGANIZATION     OF    THE    STATE     IN      THE     CONSTITUTION 
OF    THE    UNITED    STATES. 

The  fifth  article  of  the  constitution  of  the  United  States 
reads :  "  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
constitution,  or,  on  the  application  of  the  Legislatures  of  two- 
thirds  of  the  several  States"  [commonwealths],  "shall  call  a 
convention  for  proposing  amendments,  which,  in  either  case, 
shall  be  valid  to  all  intents  and  purposes,  as  part  of  this  con- 
stitution, when  ratified  by  the  Legislatures  of  three-fourths 
of  the  several  States,"  [commonwealths]  "  or  by  conventions  in 
three-fourths  thereof,  as  the  one  or  the  other  mode  of  ratifi- 
cation may  be  proposed  by  the  Congress  ;  provided  that  no 
amendment  which  may  be  made  prior  to  the  year  one  thou- 
sand eight  hundred  and  eight  shall  in  any  manner  affect 
the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article  ;  and  that  no  State,"  [commonwealth]  "without  its  con- 
sent, shall  be  deprived  of  its  equal  suffrage  in  the  Senate." 
The  first  part  of  the  proviso  has  become  obsolete,  and  there- 
fore needs  no  further  consideration ;  but  the  second  is  as  per- 
manent and  binding  as  any  other  part  of  the  constitution. 

As  I  have  already  indicated,  the  proper  standpoint  from 
which  to  examine  the  organization  of  the  state  within  the 
constitution  is  its  relation,  on  the  one  side,  to  the  revolution- 
ary organization  of  the  state  back  of  the  constitution  or,  if 
the  political  society  back  of  the  constitution  has  outgrown 
that  original  organization,  to  the  existing  social  conditions 
back  of  the  constitution  and,  on  the  other  side,  to  the  gov- 


The  Sovereignty  in  the  Constitution  of  the  U.  S.     143 

ernment  created  in  the  constitution.     In  an  earlier  chapter  of 
this  work,  I  have  endeavored  to  show  that  the  real  organiza- 
tion of  the  United  States  as  the  sovereign,  the  state,  in  our 
present  system,  was  in  the  constituent  convention.     This,  like 
the  Continental  Congress,  was  a  single  body,  representing  the 
whole  people  of  the  United  States  and  passing  its  resolves  by 
simple  majority.      The  people  of   the   United    States,   as  a 
whole,  were  behind  this   body,  and   gave    it   the    power   to 
ignore  practically  the  Confederate  Congress  and  the  legisla- 
tures of  the  commonwealths,  and,  while  formally  submitting 
its  work  to  ratification  by  the  immediate  representatives  of 
the  people  in  the  commonwealths,  chosen  by  the  people  for 
that  especial  purpose,  to  really  ordain  the  constitution.     As 
I  have  shown,  this  theory  of  the  character  and  position  of  the 
convention  is  the  only  one  which  will  give  scientific  explana- 
tion to  its  acts,  and  the    only  one  which  fits   in  with   the 
natural  status  and  relations  of  what  we  may  term  American 
political  society.     The  organization  of  the  state  within  the 
constitution,  however,  is  of  a  double,  and  perhaps  of  a  triple 
or  quadruple,   character.      Article  V  provides,   in  the    first 
place,  for  an  organization  apparently  very  nearly  correspon- 
dent with  the  original  organization  back  of  the  constitution, 
viz ;  a  convention  for  proposing  amendments,  and  conven- 
tions   of    the   people    resident   within    the    several    common- 
wealths for  ratifying  the  same.     According  to  the  letter  of 
the  law,  however,  the  general  convention  is  only  an  initiating 
body,  and  a  three-fourths  majority  of  the  separate  conven- 
tions is  the  real  constituent.     This  was  the  apparent  relation 
between  the  original  convention  of    1787  and  the   separate 
conventions    within    the    commonwealths  ;    but,    as    I    have 
shown,  that  body  really  exercised  constituent  powers  when  it 
framed  an  entirely  new  constitution,  designated  the   bodies 
who  should  ratify  it,  and  fixed  the  majority   necessary  for 
ratification.     It  is  probable  that  another  convention,   repre- 
senting in  a  single  body  the  whole  people  of   the   United 


144  Organization  of  the  State. 

States,  upon  a  truthful  basis  of  representation,  would  have 
such  a  moral  power  as  to  carry  its  resolves  through  the 
separate  conventions  unchanged,  unless  some  absorbing  sec- 
tional interest  should  control  the  conventions  in  more  than 
one-fourth  of  the  commonwealths.  In  such  a  case  the  na- 
tional convention  might  be  able  to  propose  and  cause  to  be 
applied  a  different  method  of  ratification  from  that  provided 
in  the  existing  constitution,  as  did  the  convention  of  1787; 
but  this  would  be  revolution  again,  as  that  was,  and  not 
existing  law. 

It  will  be  seen  that  the  constitution  does  not  elaborate  the 
details  of  this  form  of  organization  of  the  state.  It  therefore 
impliedly  leaves  that  to  the  Congress.  The  Congress  has 
never  touched  the  subject,  and  the  constitution  has  never 
been  changed  by  the  sovereign  under  this  form  of  organiza- 
tion. From  a  theoretical  standpoint,  this  is  much  to  be 
regretted.  We  have  here  upon  paper  an  organization  of  the 
sovereignty  separate  from  the  organs  of  government.  It  is  a 
great  advance  in  constitutional  law,  and  if  it  could  be  actually 
applied  to  practice,  it  would  give  us  the  vantage-ground  for 
the  solution  of  the  many  difficulties  which  arise  out  of  con- 
founding the  state  with  the  government. 

The  second  form  of  organization  of  the  state  within  the 
constitution  vests  the  sovereign  power  in  the  Congress  and 
the  legislatures  of  the  commonwealths,  the  former  originating, 
and  the  latter  ratifying,  the  changes  in  constitutional  law. 
The  confederate  constitution  of  1781  vested  the  amending 
power  in  these  same  bodies ;  but  that  constitution  required 
unanimity  in  the  ratifying  bodies,  with  simple  majority  of  the 
commonwealths  represented  in  the  proposing  body,  while 
the  present  constitution  requires  only  a  three-fourths  major- 
ity of  the  ratifying  bodies,  with  a  two-thirds  majority  of 
both  houses  of  the  proposing  body.  This  difference  is  fun- 
damental. It  stamps  the  present  system  as  consolidated 
over  against  the  confederatism  of  the  other.     When  any  one 


The  Sovereigiity  in  the  Constitution  of  the  U.  S.     145 

commonwealth  can  be  bound  against  its  will,  confederatism 
is  overcome. 

The  difficulty  with  this  form  of  organization  is  that  it 
identifies  the  organization  of  the  state  with  the  organs  of 
government,  and  promotes  that  confusion  of  thought  in  deal- 
ing with  the  subjects  of  public  law  which  arises  from  the  lack 
of  a  sufficiently  clear  distinction  of  state  from  government. 
This  is  felt  in  a  different  way  in  our  system  from  what  it  is 
in  the  English.  We  do  not  lose  thereby  the  juristic  test 
of  constitutional  law,  as  the  English  do.  Only  that  which 
passes  both  Congress  and  the  legislatures  of  the  common- 
wealths is  constitutional  law,  while  ordinary  statute  law  is 
made  by  these  bodies  separately.  But  we  become  confused 
upon  the  still  more  important  point  as  to  whether  the  sov- 
ereignty is  in  the  United  States  or  in  the  commonwealths ; 
and  we  are  led  to  misconceive  the  real  character  of  the  com- 
monwealths, and  to  think  of  them  really  as  states  instead  of 
merely  as  governments.  This  is  also  true,  in  some  degree, 
when  the  ratifying  bodies  are  conventions  of  the  people  resi- 
dent within  the  commonwealths  ;  but  it  is  much  easier  to 
comprehend  that  these  bodies,  created  directly  by  the  consti- 
tution of  the  United  States  and  solely  for  United  States  pur- 
poses, are  institutions  of  the  United  States,  than  that  the 
legislatures  of  the  commonwealths  are  such,  even  when  act- 
ing in  this  capacity  only. 

The  advantage,  on  the  other  hand,  of  this  form  of  organiza- 
tion of  the  sovereignty  lies  in  its  convenience.  The  bodies 
called  upon  to  act  are  always  in  existence.  It  is  not  neces- 
sary, therefore,  to  exhaust  time  and  energy  and  incur  special 
expense  to  call  them  out  of  potential  into  actual  being.  It 
is  to  be  presumed,  moreover,  that  those  accustomed  to  the 
work  of  legislation  know  best  when  and  where  the  organic 
law  should  be  changed  or  supplemented.  The  former  con- 
sideration especially  has,  no  doubt,  determined  the  practice 
in  our  system.     All  the  changes  in  our  constitutional  law 


146  Organization  of  the  State. 

have  been  made  by  the  sovereignty  under  this  form  of  organ- 
ization. 

In  the  third  place,  it  will  be  seen  from  an  examination  of 
the  article  of  the  constitution  relating  to  this  subject  that  the 
Congress  may  direct  which  method  of  ratification  shall  be 
followed.  The  Congress  may,  therefore,  combine  itself 
with  conventions  of  the  people  within  the  commonwealths  or 
may  combine  the  general  convention  with  the  legislatures 
of  the  commonwealths.  Either  would  be  a  more  convenient 
form  of  organization  than  the  first  form  treated.  The  com- 
bination of  the  general  convention  with  the  commonwealth 
legislatures,  however,  would  be  confusing  upon  the  most  vital 
topic  of  our  system.  The  combination  of  the  Congress  with 
the  conventions  within  the  commonwealths  would,  on  the 
other  hand,  furnish  us  a  form  of  organization  much  less  liable 
to  misconception  and,  at  the  same  time,  fairly  convenient. 

Congress,  as  I  have  indicated,  has  never  ordained  any  such 
combinations  ;  and  in  the  method  actually  followed,  Congress 
has  not  elaborated  any  complete  system  of  procedure.  Any- 
thing approaching  an  exhaustive  regulation  of  this  subject 
would  require  an  express  determination  of  the  following  ques- 
tions, viz;  whether  the  proposed  amendment  is  subject  to 
the  President's  veto  power ;  how  the  submission  of  the  same 
to  the  legislatures  of  the  commonwealths  is  to  be  effected  ; 
whether  the  two  houses  of  the  commonwealth  legislatures 
are  to  sit  in  joint  session  ;  whether  the  resolutions  of  these 
bodies  upon  the  proposition  or  propositions  of  Congress  are 
subject  to  the  usual  veto  power  of  the  executives  of  the 
respective  commonwealths  ;  what  period  is  to  be  set  for  and 
to  the  deliberations  of  these  bodies  upon  the  proposition  or 
propositions  of  the  Congress  ;  how  the  acts  of  these  bodies 
shall  be  communicated  to  the  Congress  ;  whether  a  common- 
wealth legislature  can  reconsider  its  resolution  either  before 
or  after  notification  of  the  same  to  Congress,  and  from  what 
date  an  approved  proposition  shall  be  deemed  in  force  as  a 


The  Sovereignty  in  the  Constitution  of  the  U.  S.     147 

part  of  the  constitution.  All  we  have  upon  this  subject 
from  the  Congress  is  contained  in  the  formula  of  the  resolu- 
tion submitting  a  proposition  for  ratification  which  reads : 
"Resolved  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  two- 
thirds  of  both  Houses  concurring,  That  the  following  article 
be  proposed  to  the  legislatures  of  the  several  states,  as  an 
amendment  to  the  constitution  of  the  United  States  ;  which 
when  ratified  by  three-fourths  of  the  said  legislatures  shall 
be  valid  as  part  of  the  said  constitution  ;x  and  in  the  direc- 
tion as  to  promulgation,  which  reads:  "Whenever  official 
notice  is  received  at  the  Department  of  State  that  any 
amendment  proposed  to  the  Constitution  of  the  United  States 
has  been  adopted,  according  to  the  provisions  of  the  Consti- 
tution, the  Secretary  of  State  shall  forthwith  cause  the 
amendment  to  be  published  in  the  newspapers  authorized 
to  promulgate  the  laws,  with  his  certificate,  specifying 
the  States"  (commonwealths)  "by  which  the  same  may  have 
been  adopted,  and  that  the  same  has  become  valid,  to  all 
intents  and  purposes,  as  a  part  of  the  Constitution  of  the 
United  States."  2 

It  will  be  seen  from  an  examination  of  the  first  of  these 
provisions,  that  Congress  treats  the  origination  of  the  propo- 
sitions of  amendment  as  exempt  from  the  veto  power  of  the 
President.  The  resolutions  of  this  nature  are  not  printed  in 
the  statutes  as  approved  by  the  President,  but  as  signed  by 
the  speaker  of  the  House  of  Representatives  and  the  presi- 
dent of  the  Senate,  and  attested  by  the  clerk  of  the  House  of 
Representatives  and  by  the  secretary  of  the  Senate.  The 
constitution  of  the  United  States  declares,  however,  that 
"every  order,  resolution,  or  vote  to  which  the  concurrence 
of  the  Senate  and   House  of   Representatives  may  be  nec- 

1  United  States  Statutes  at  Large,  Vol.  I,  pp.  97,  402;  Vol.  II,  p.  306;  Vol 
XIII,  p.  567;   Vol.  XI V,  p.  358;   Vol.  XV,  p.  346. 

2  Revised  Statutes  of  the  United  States,  p.  32,  sec.  205. 


148  Organization  of  the  State. 

essary  (except  on  a  question  of  adjournment)  "  is  subject  to 
the  President's  veto.1  There  certainly  seems  to  be  here  a 
repugnance  between  the  law  and  the  practice.  It  is  some- 
times said  that  this  question  is  one  of  no  practical  conse- 
quence, since  the  two-thirds  majority  necessary  to  pass  the 
proposition  in  the  first  place  could  override  the  President's 
veto.2  I  think  this  a  superficial  view.  The  President  may 
veto  the  resolutions  of  Congress,  no  matter  by  how  great 
majority  originally  passed.  If  he  does,  the  resolutions  are 
thereby  subjected  to  a  second  consideration  and  vote,  and  it 
is  not  at  all  improbable  that  the  President's  objections  may 
produce  a  change  in  the  vote  sufficient  to  defeat  the  original 
proposition,  or  to  cause  a  modification  of  the  same. 

Moreover,  it  will  be  seen  that  the  practice  of  Congress  is 
to  connect  the  determination  of  the  question  as  to  whether 
the  proposition  or  propositions  of  amendment  shall  be  sub- 
mitted to  conventions  of  the  people  within  the  several  com- 
monwealths or  to  the  legislatures  thereof  with  the  passage 
of  the  proposition  or  propositions,  thus  avoiding  the  veto  of 
the  President  upon  that  point.  The  question  of  determining 
the  bodies  to  whom  submission  shall  be  made  is  certainly  a 
distinct  one  from  the  internal  question  of  the  proposition 
itself.  It  is  a  question  determined  finally  by  the  Congress 
and  not  dependent  for  validity  upon  ratification,  as  is  the 
content  of  the  proposition.  It  might  well  be  claimed  that 
though  the  content  of  the  proposition  should  be  fixed  by 
Congress  alone,  yet  the  act  of  submission  should  be  in  the 
form  of  a  law;  i.e.  should  be  subject  to  the  President's  veto. 
If  this  be  not  so,  then  I  do  not  see  that  it  would  ever  be 
necessary,  in  the  determination  of  this  question,  to  unite 
more  than  a  simple  majority  in  the  houses  of  Congress,  since 
the  constitution  simply  prescribes  that  Congress  shall  deter- 


1  Art.  I,  sec.  7,  §  3. 

2  Paschal,  Annotated  Constitution,  p.  247,  sec.  236. 


The  Sovereignty  in  the  Constitution  of  the  U.  S.     149 

mine  which  of  the  two  methods  of  ratification  shall  be  fol- 
lowed, without  designating  the  majority  necessary  to  do  so. 
It  must  be  confessed  that  the  language  of  the  constitution 
upon  this  most  important  subject  is  not  clear,  and  that  the 
practice  of  Congress  has  some  appearance  of  repugnance 
to  it ;  but  happily  we  have  a  decision  of  the  Court  which 
declares  that  the  procedure  followed  by  the  Congress  is  in 
conformity  with  the  constitution.1 

After  the  submission,  the  Congress  leaves  everything  to 
the  legislatures  of  the  commonwealths  until  their  ratifications, 
in  sufficient  number  to  make  the  proposition  a  valid  part  of 
the  constitution,  are  in  the  hands  of  the  Secretary  of  State 
of  the  United  States.  One  question  may  be  said  to  have  been 
touched  and  a  settlement  indicated,  in  the  practice,  during 
this  stage  of  the  procedure,  viz ;  that  a  commonwealth  may 
always  reconsider  its  refusal  to  ratify,  but  that  ratification 
once  voted  cannot  be  withdrawn,  neither  after  the  sufficient 
number  shall  have  ratified  to  make  the  proposition  a  part  of 
the  constitution,  but  before  promulgation,  nor  before  the 
sufficient  number  shall  have  been  reached.  I  say  this  settle- 
ment of  the  question  is  only  indicated,  not  fully  fixed.2 
It  is  certainly  the  only  sound  view  of  the  subject.  When 
the  official  report  of  ratification  from  any  commonwealth  is 
in  the  hands  of  the  Secretary  of  State  of  the  United  States, 
all  further  power  over  the  subject  has  passed  from  that  com- 
monwealth. It  may  with  some  reason  be  held  that  another 
point  is  implied  in  the  precedents,  viz ;  that  no  common- 
wealth may  insert  any  change  in  the  proposition  of  the 
Congress  nor  ratify  conditionally.  Certainly  the  insertion  of 
any  change  would  be  an  exceeding  of  the  powers  conferred 
by  the  constitution  of  the  United  States  upon  the  legislatures 
of  the  commonwealths  in  regard  to  this  subject.     The  con- 


1  Hollingsworth  v.  Virginia,  U.  S.  Reports,  3  Dallas,  378. 

2  Cooley,  Principles  of  Constitutional  Law,  p.  203. 


150  Organization  of  the  State. 

stitution  confers  upon  them  only  ratifying  powers ;  i.e.  it 
confers  upon  them  no  powers  of  initiation.  It  is  not  so  cer- 
tain, however,  that  the  legislatures  of  the  commonwealths 
can  attach  no  conditions  to  their  ratifications.  For  example, 
if  a  legislature  should  ratify,  and  fix  a  certain  date  past  which 
its  ratification  would  not  hold  unless  the  legislatures  of  three- 
fourths  of  the  commonwealths  should  have  ratified  before  or 
upon  that  date,  it  is  not  certain  that  this  would  not  be 
valid  as  within  the  powers  of  the  legislature.  The  constitu- 
tion of  the  United  States  does  not  fix  the  date  within  which 
ratifications  must  be  made.  Congress  has  not  done  so,  and 
certainly  there  are  scientific  objections  to  having  a  proposi- 
tion so  long  undecided  as  to  become  obsolete.  Nevertheless, 
I  think  the  sound  view  of  the  subject,  from  the  standpoint  of 
political  science,  is  that  the  legislatures  should  not  be  allowed 
to  affix  any  conditions  whatever  to  their  ratifications.  I 
think  also  that  the  sound  interpretation  of  the  constitution 
of  the  United  States  must  arrive  at  the  same  result.  The 
only  power  which  the  legislatures  have  upon  this  subject  is 
derived  from  an  express  grant  in  the  constitution  of  the 
United  States ;  and  since  that  grant  speaks  only  of  ratifica- 
tion, it  is  the  reasonable  conclusion  that  if  ratification,  in  any 
other  than  its  primary  and  simplest  form,  is  allowed  at  all,  it 
must  be  by  permission  of  the  Congress,  antecedently  given  ; 
because  the  attachment  of  any  conditions  to  the  ratification 
would  be  an  exercise  of  the  power  of  initiation,  and  the  con- 
stitution vests  the  whole  power  of  initiation  upon  this  subject 
in  the  Congress. 

I  cannot  sympathize  with  that  unreserved  commendation 
of  the  fifth  article  of  the  constitution  of  the  United  States 
indulged  in  by  Mr.  Justice  Story1  and  other  commentators. 
When  I  reflect  that,  while  our  natural  conditions  and  rela- 
tions   have    been    requiring   a   gradual    strengthening    and 

1  Story,  Commentaries  od  the  Constitution  of  the  United  States,  Vol.  II,  p 
574  ff,  §§  1826-1831. 


The  Sovereignty  in  the  Constitution  of  the  U.  S.     151 

extension  of  the  powers  of   the  central  government,  not  a 
single  step  has    been  taken    in  this  direction  through   the 
process  of  amendment  prescribed  in  that  article,  except  as 
the  result  of  civil  war,    I  am  bound  to  conclude   that   the 
organization  of  the  sovereign  power  within  the  constitution 
has  failed  to  accomplish  the  purpose  for  which  it  was  con- 
structed.    I  am  not  of  those  who  believe  that  we  have  done 
with  war  in  the  world  yet.     I  believe  that  much  of  the  civili- 
zation of  the  world  is  still  to  be  wrought  out  through  its  ap- 
parently destructive  agency.     But  I  do  say  this  :  that  when 
a   state    must    have    recourse  to  war   to    solve  the  internal 
questions  of  its  own   politics,  this  is  indisputable  evidence 
that  the  law  of  its   organization  within  the  constitution  is 
imperfect ;  and  when  a  state  cannot  so  modify  and  amend  its 
constitution  from  time  to  time  as  to  express  itself  truthfully 
therein,  but  must  writhe  under  the   bonds  of   its  constitu- 
tion until  it  perishes  or  breaks  them  asunder,  this  is  again 
indisputable  evidence  that  the  law  of  its  organization  within 
the  constitution  is  imperfect  and  false.     To  my  mind  the 
error  lies  in  the  artificially  excessive  majorities  required  in 
the  production  of  constitutional  changes.     According  to-  the 
census  of    1880,  it  was  possible  for  less  than    3,000,000  of 
people  to  successfully  resist   more  than  45,000,000  in  any 
attempt  to  amend  the  constitution  under  the  present  pro- 
cess.    The  argument  in  favor  of  these  artificial  majorities  is 
that  innovation  is  too  strong  an  impulse  in  democratic  states, 
and  must  be  regulated  ;  that  the  organic  law  should  be  changed 
only  after  patience,  experience  and   deliberation   shall  have 
demonstrated  the  necessity  of  the  change  ;  and  that  too  great 
fixedness  of  the  law  is  better  than  too  great  fluctuation.1   This 
is  all  true  enough  ;  but,  on  the  other  hand,  it  is  equally  true 
that  development  is  as  much  a  law  of  state  life  as  existence. 
Prohibit  the  former,  and  the  latter  is  the  existence  of  the 

1  Story,  Commentaries  upon  the  Constitution  of  the  United  States,  Vol.  II,  p. 
575.  §  1828. 


152  Organization  of  the  State. 

body  after  the  spirit  has  departed.  When,  in  a  democratic 
political  society,  the  well-matured,  long  and  deliberately  formed 
will  of  the  undoubted  majority  can  be  persistently  and  suc- 
cessfully thwarted,  in  the  amendment  of  its  organic  law,  by 
the  will  of  the  minority,  there  is  just  as  much  danger  to  the 
state  from  revolution  and  violence  as  there  is  from  the  caprice 
of  the  majority,  where  the  sovereignty  of  the  bare  majority  is 
acknowledged.  The  safeguards  against  too  radical  change 
must  not  be  exaggerated  to  the  point  of  dethroning  the  real 
sovereign. 

There  is  another  way,  a  better  way  and  a  natural  way 
of  securing  deliberation,  maturity  and  clear  consciousness  of 
purpose  without  antagonizing  the  actual  source  of  power  in 
the  democratic  state,  viz ;  by  repetition  of  vote.  If,  for  exam- 
ple, the  Congress  should,  in  joint  session  and  by  simple 
majority,  resolve  upon  a  proposition  of  amendment,  and  give 
notice  of  the  same  to  the  people  in  time  for  the  voters  to 
take  the  matter  into  consideration  in  the  election  of  the 
members  of  the  House  of  Representatives  for  the  next  suc- 
ceeding Congress ;  and  if  the  succeeding  Congress  should 
then  repass  the  proposition  in  joint  session  and  by  like 
majority;  and  if  then  it  should  be  sent  to  the  legislatures  of 
the  commonwealths  for  ratification  by  the  houses  thereof,  act- 
ing in  joint  assembly  and  resolving  by  simple  majority  vote ; 
and  if  then  the  vote  of  each  legislature  should  have  the  same 
weight  in  the  count  as  that  of  the  respective  commonwealth 
in  the  election  of  the  President  of  the  United  States,  and  an 
absolute  majority  of  all  the  votes  to  which  all  of  the  com- 
monwealths were  entitled  should  be  made  necessary  and  suffi- 
cient for  ratification,  — why  would  not  this  be  an  organization 
of  the  sovereign,  of  the  state  within  the  constitution,  which 
would  be  truthful  to  the  conditions  of  our  national  demo- 
cratic society  and  our  federal  system  of  government ;  which 
would  secure  all  needful  deliberation  in  procedure  and  matur- 
ity in  resolution  ;  which  would  permit  changes  when  the  nat- 


The  Sovereignty  in  the  Constitution  of  the  U.  S.     153 

ural  conditions  and  relations  of  our  state  and  society  demanded 
them  ;  and  which  would  give  us  an  organization  of  the  state 
convenient  in  practice  and,  at  the  same  time,  sufficiently  dis- 
tinct from  the  organization  of  the  government  to  prevent 
confusion  of  thought  in  reference  to  the  spheres  and  powers 
of  the  two  organizations  ? 

To  reach  such  an  organization  of  the  state  within  the  con- 
stitution legally  would,  of  course,  require  the  amendment  of 
the  provision  of  the  constitution  for  amendment.  This  may 
be  done  legally  in  the  manner  prescribed  for  making  any 
amendment,  since  no  part  of  the  constitution  is  withdrawn  by 
the  constitution  from  the  process,  except  the  equality  of  the 
commonwealths  in  the  senatorial  representation.  The  only 
question  would  be  as  to  whether  this  exception  must  be  con- 
nected with  the  new  law  of  amendment.  It  seems  to  me 
that  the  letter  of  the  constitution  and  the  intentions  of  the 
framers  would  require  this,  unless  the  new  law  should  be  rati- 
fied by  the  legislature  of  every  commonwealth.  If  this  be 
not  true,  then  a  commonwealth  might  be  deprived  indirectly 
of  its  equal  representation  in  the  Senate  without  its  own  con- 
sent, while  by  the  existing  law  it  cannot  in  any  manner  be 
so  deprived.  From  the  standpoint  of  political  science,  on 
the  other  hand,  I  regard  this  legal  power  of  the  legislature 
of  a  single  commonwealth  to  resist  successfully  the  will  of 
the  sovereign  as  unnatural  and  erroneous.  It  furnishes  the 
temptation  for  the  powers  back  of  the  constitution  to  re- 
appear in  revolutionary  organization  and  solve  the  question 
by  power,  which  bids  defiance  to  a  solution  according  to  law. 
There  is  a  growing  feeling  among  our  jurists  and  publicists 
that,  in  the  interpretation  of  the  constitution,  we  are  not  to 
be  strictly  held  by  the  intentions  of  the  framers,  especially 
since  the  whole  fabric  of  our  state  has  been  so  changed  by 
the  results  of  rebellion  and  civil  war.  They  are  beginning  to 
feel,  and  rightly  too,  that  present  conditions,  relations  and 
requirements   should    be  the    chief    consideration,    and    that 


154  Organization  of  the  State. 

when  the  language  of  the  constitution  will  bear  it,  these 
should  determine  the  interpretation.  From  this  point  of 
view  all  the  great  reasons  of  political  science  and  of  juris- 
prudence would  justify  the  adoption  of  a  new  law  of  amend- 
ment by  the  general  course  of  amendment  now  existing, 
without  the  attachment  of  the  exception ;  and  in  dealing  with 
the  great  questions  of  public  law,  we  must  not,  as  Mirabeau 
finely  expressed  it,  lose  the  grande  morale  in  the  petite 
morale. 


Sovereignty  in  the  German  Imperial  Constitution.    155 


CHAPTER   III. 

THE    ORGANIZATION    OF    THE    STATE    WITHIN    THE    GERMAN 
CONSTITUTION. 

The  seventy-eighth  article  of  the  imperial  constitution 
reads  as  follows  :  "  Changes  of  the  constitution  shall  be 
effected  by  legislation.  Propositions  therefor  are  to  be 
regarded  as  defeated  when  fourteen  voices  in  the  Federal 
Council  declare  against  them.  Those  provisions  of  the 
imperial  constitution,  through  which  specific  rights  are 
secured  to  an  individual  commonwealth  of  the  Union  in  its 
relation  to  the  Union,  can  be  changed  only  with  the  con- 
sent of  the  commonwealth  so  privileged."1  This  language 
requires  much  explanation  before  any  criticism  will  be 
intelligible. 

1.  What  is  meant  by  the  provision  that  changes  in  the 
constitution  shall  follow  the  usual  course  of  legislation  ?  The 
first  element  of  the  answer  is,  of  course,  that  the  legislative 
department  of  the  imperial  government  makes  constitutional 
law.  No  distinction,  then,  as  to  personnel  or  organization, 
exists  between  the  body  which  makes  constitutional  law  and 
the  body  which  makes  ordinary  law.  The  second  element 
of  the  answer  requires  a  description  of  the  usual  course  of 
legislation.  The  two  houses  of  the  legislature  are  the  Fed- 
eral Council  (Bundesrath)  and  the  Diet  (Reichstag)}  Bills 
may  be  originated  in  either  house.3  They  become  law  when 
passed  by  both  houses  by  simple  majority  vote  of  those 
voting,  a  quorum  being  present.4     A  quorum  in  the  Diet  is 

1  Reichsverfassung,  Art.  78.  2  Ibid.  Art.  5. 

8  Ibid.  Arts.  7  and  23.  4  Ibid.  Art.  5. 


156  Organization  of  the  State. 

the  majority  of  the  whole  number.1  In  the  Federal  Council 
it  consists  of  those  present  at  a  meeting  regularly  called,  the 
chancellor  or  his  representative  being  among  those  present.3 
The  constitution  does  not  require  the  Emperor's  approval 
to  bills  which  may  become  law  through  the  general  course 
of  legislation,  and  therefore  amendments  to  the  constitution 
are  not  subject  to  his  veto,  since  they,  by  provision  of  the 
constitution,  follow  this  course. 

2.  But  when  this  general  provision  of  the  constitution  in 
reference  to  legislation  is  made  applicable  to  the  work  of 
changing  the  constitution,  it  is  placed  under  one  general  and 
one  special  limitation. 

The  first  limitation  requires  an  extraordinary  majority  in 
the  Federal  Council  to  effect  any  constitutional  changes. 
Less  than  fourteen  voices  in  that  body  must  oppose  the 
proposition  in  order  that  its  passage  may  be  effected.3  The 
Federal  Council  {BundesratJi)  is  composed  of  members 
appointed  by  the  executives  of  the  twenty-five  common- 
wealths of  the  German  Empire,  to  the  number  of  fifty-eight 
voices.4  The  representation  therein  is  distributed  as  follows  : 
Prussia  has  seventeen  voices ;  Bavaria,  six ;  Saxony  and 
Wiirttemberg  have  four  each ;  Baden  and  Hesse  have  three 
each  ;  Brunswick  and  Mecklenburg-Schwerin  have  two  each  ; 
the  rest  have  one  each.0  The  vote  of  each  commonwealth 
is  cast  solid  and  according  to  instructions  from  the  executive 
of  the  commonwealth. b  The  Diet  (Reichstag),  on  the  other 
hand,  is  composed  of  members  elected  by  the  universal 
suffrage  of  all  male  Germans  twenty-five  years  of  age  and  in 
full  possession  of  their  civil  rights,  and  the  representation  is 
according  to  population.7     Each  member  thereof  represents 

1  Reichsverfassung,  Art.  28. 

2  Von  Ronne,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  II,  Erste  Ab- 
theilung  S.  12.  3  Reichsverfassung,  Art.  78. 

4  By  an  amendment  to  the  constitution  in  191 1,  Alsace-Lorraine  was  granted 
three  voices  in  the  Federal  Council,  making  sixty-one  voices  in  all. 

5  Ibid.  Art.  6.  6  Ibid.  Arts.  6  and  7.  7  Ibid.  Art.  20. 


Sovereignty  in  the  German  Imperial  Constitution.    157 

the  whole  Empire  and  votes  uninstructed.1  Fully  three- 
fourths  of  the  members  are  from  Prussia.  The  vote  in  this 
body  upon  changes  of  the  constitution  is  by  simple  majority 
of  those  voting  thereon,  a  quorum  being  present. 

It  will  be  seen  from  an  examination  of  the  representation 
in  these  two  bodies,  that  while  the  King  of  Prussia  or  the 
representatives  in  the  Diet  from  Prussia  may  prevent  any 
change  in  the  constitution,  both  of  them  together  cannot 
effect  a  change  in  the  constitution.  It  will  also  be  seen  that 
the  Kings  of  Bavaria,  Wurttemberg  and  Saxony  can  together 
prevent  any  change  in  the  constitution,  but  that  all  the 
executives,  without  the  King  of  Prussia,  and  the  unanimous 
voice  of  the  Diet  taken  together  cannot  force  a  change  of  the 
constitution  upon  the  King  of  Prussia.  Finally,  it  will  be 
seen  that  the  executives  of  at  least  twelve  of  the  largest 
commonwealths  must  unite  with  the  majority  of  the  Diet  in 
order  to  effect  a  change  in  the  constitution. 

The  second  limitation  upon  the  general  course  of  legisla- 
tion in  making  constitutional  changes  is  special,  and  ordains 
that  those  provisions  of  the  constitution,  through  which 
specific  rights  are  guaranteed  to  the  individual  commonwealths 
in  their  relation  to  the  Union,  cannot  be  changed  except  with 
the  consent  of  the  commonwealths  so  privileged.2 

Limitations  upon  and  exceptions  to  general  provisions  are 
of  course  to  be  strictly  construed.  Under  this  exception  to 
the  general  course  of  constitutional  amendment,  therefore, 
nothing  can  be  claimed  as  a  specific  right  requiring,  as  the 
condition  of  its  change,  the  consent  of  the  commonwealth 
affected,  unless  it  shall  be  expressly  guaranteed  in  the  consti 
tution,  and  unless  it  shall  affect  the  relation  of  the  particular 
commonwealth  to  the  Union.  For  example,  the  general 
rights  and  powers  of  local  self-government  not  withdrawn 
from  the  commonwealths  by  the  imperial  constitution,  but 

1  Reichsverfassung,  Art.  29.  2  Ibid.  Art.  78. 


158  Organization  of  the  State. 

not  expressly  secured  to  the  commonwealths  by  that  consti- 
tution, are  not  protected  by  this  exception  from  the  general 
course  of  constitutional  amendment. 

These  specific  rights,  guaranteed  in  the  constitution,  are 
quite  numerous.  They  are  either  in  the  form  of  specific  pow- 
ers conferred  upon  particular  commonwealths,  or  specific 
exemptions  of  particular  commonwealths  from  the  general 
powers  of  the  imperial  government.  In  the  first  class  belong 
the  right  of  Prussia  to  the  presidency  of  the  Union  ; x  the 
right  of  Bavaria  to  the  chairmanship  of  the  standing  com- 
mittee of  the  Federal  Council  for  Foreign  Affairs,2  and  to  a 
permanent  seat  in  the  standing  committee  of  the  Federal 
Council  for  the  Army  and  Fortifications  ;3  the  right  of  Wtirt- 
temberg  to  a  permanent  seat  in  the  standing  committees  for 
Foreign  Affairs  4  and  for  the  Army  and  Fortifications  ; 5  and 
the  right  of  Saxony  to  a  permanent  seat  in  the  standing  com- 
mittee of  the  Federal  Council  for  Foreign  Affairs.6  These 
are  clearly  all  specific  powers  touching  the  relation  of  the 
particular  commonwealth  to  the  Union,  and  guaranteed  by  the 
express  provisions  of  the  constitution  to  the  particular  com- 
monwealth, and  there  is  no  difference  of  opinion  among  the 
commentators  in  regard  to  their  falling  under  the  class  of 
rights  which  may  be  dealt  with  only  by  consent  of  the  com- 
monwealth so  privileged.  The  commentators,  however,  gen- 
erally go  further,  and  bring  under  this  class  also  powers  not 
guaranteed  to  a  particular  commonwealth  by  the  constitution, 
but  by  the  treaty  made  between  the  North  German  Union 
and  Bavaria,  connecting  Bavaria  with  the  North  German  Union 
in  the  present  German  Union  or  Empire.7    The  powers  guar- 

1  Reichsverfassung,  Art.  II.  2  Ibid.  Art.  8. 

a  Ibid.  Art.  8.  4  Ibid.  Art.  8. 

5  Ibid.  Schlussbestimmung  zum  XI.  Abschnitt,  Art.  15. 

6  Reichsverfassung,  Art.  8. 

7  Schulze,  Lehrbuch  des  deutschen  Staatsrechts,  Zweites  Buch,  S.  14;  von 
RSnne,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  II,  Erste  Abtheilung  S. 
46,  47. 


Sovereignty  in  the  German  Imperial  Constitution.    159 

anteed  to  Bavaria  in  this  treaty  are  :  that  in  case  Prussia 
shall  be  prevented  from  exercising  the  presidency  of  the 
Federal  Council,  Bavaria  shall  have  that  right,1  and  that 
in  case  the  imperial  ambassadors  shall  be  prevented  from 
representing  the  Empire  at  courts  to  which  Bavarian  ambas- 
sadors are  accredited,  these  latter  shall  have  that  right.2 
These  provisions  of  that  treaty  are  mentioned  in  the  law 
passed  by  the  imperial  legislature  on  April  16,  1871,  empow- 
ering the  Emperor  to  proclaim  the  revised  constitution  in 
force,  and  are  declared  in  that  law  to  be  unchanged  by  the 
constitution  ;  i.e.  they  are  declared  to  retain  their  character 
as  treaties  between  the  Empire,  in  place  of  the  North  German 
Union,  and  Bavaria ;  i.e.  they  cannot  be  changed  by  the  pro- 
cess of  constitutional  amendment  without  the  consent  of 
Bavaria.  This  is  undoubtedly  regarded  as  law  by  the  Ger- 
man jurists,  statesmen  and  publicists,  but  it  certainly  is  very 
bad  political  science.  It  is  bad  enough  to  acknowledge  that 
the  sovereign  is  not  sovereign  upon  subjects  expressly  and 
specifically  excepted  in  the  constitution.  When,  however, 
we  go  beyond  this,  we  are  certainly  on  the  road  to  Warsaw. 
Some  of  the  commentators  go  still  further  and  construct 
specific  rights  for  certain  commonwealths  out  of  the  general 
principles  of  the  constitution,  and  then  assign  such  implied 
rights  to  the  class  of  rights  requiring  the  consent  of  the  com- 
monwealth affected  to  any  change  therein.  They  claim,  for 
example,  that  the  existing  distribution  of  the  voices  in  the 
Federal  Council  belongs  to  this  class.3  Those  who  do  not 
hold  this  view  in  general  place,  nevertheless,  the  right  of 
Bavaria  to  six  voices  instead  of  four  —  the  number  to  which 
Bavaria  would  have  been  entitled  if  the  same  principle  of 
distribution  had  been  applied  to  Bavaria  as  was  applied  to 

1  Bayerisches  Schlussprotokoll,  IX. 

2  Ibid.  VII. 

8  Von  Rdnne,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  II,  Erste  \btheilung 
S.47. 


160  Organization  of  the  State. 

the  other  commonwealths  —  under  this  class.1  Laband  goes 
so  far  as  to  claim  legal  equality  of  the  commonwealths  in  rights 
and  duties  as  a  right  of  each  commonwealth,  which  cannot 
be  changed  without  the  consent  of  the  commonwealth  unfavor- 
ably affected.2  This  is  utterly  indefensible  from  the  stand- 
point of  political  science,  and  I  think  also  from  that  of  the 
constitutional  law  of  the  Empire.  The  constitution  only 
declares  "that  those  provisions  of  the  constitution  through 
which  specific  rights  are  guaranteed  to  a  particular  common- 
wealth "  are  subject  to  this  particularistic  method  of  change. 
It  therefore  excludes  everything  else  from  this  category.  If 
we  depart  from  the  strict  construction  of  this  exception  to 
the  sovereignty  of  the  Empire,  there  will  be  no  firm  ground 
at  all  under  our  feet.  The  whole  organization  of  the  state 
will  become  a  matter  of  conflicting  opinion  instead  of  objec- 
tive reality.  Such  honeycombing  of  the  constitution  is  not 
dictated  either  by  the  needs  of  science  or  the  condition  of 
the  Empire.     It  springs  from  the  blindness  of  particularism. 

The  other  class  of  specific  rights  guaranteed  by  the  con- 
stitution to  particular  commonwealths  consists  of  exemptions 
of  the  particular  commonwealths  from  the  general  powers  of 
the  imperial  government.  These  are  far  more  numerous 
than  those  of  the  first  class. 

Bavaria  is  the  most  richly  privileged.  The  constitution 
provides  that  Bavaria  shall  be  exempt  from  the  legislation 
and  supervision  of  the  imperial  government  in  regard  to  the 
law  of  residence  and  settlement;3  in  regard  to  the  taxation 
of  domestic  liquors  and  beer;4  in  regard  to  the  regulation  of 
the  railway  system,  except  in  so  far  as  the  general  defence 
of  the  Empire  shall  require  uniformity;5  in  regard  to  the 
regulation  of  the  internal'postal  and  telegraphic  system,  and 

1  Schulze,  Lehrbuch  des  deutschen  Staatsrechts,  Zweites  Buch,  S.  14;  Laband, 
Das  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  113. 

*  Laband,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  109. 

8  Reichsverfassung,  Art.  4,  sec.  I.  4  Ibid.  Art.  35.  5  Ibid.  Art.  46 


Sovereignty  in  the  German  Imperial  Constitution.    161 

also  the  postal  and  telegraphic  intercourse  with  her  imme- 
diate foreign  neighbors  ; 1  and  in  regard  to  the  regulation  of 
the  military  system,  except  in  so  far  as  imperial  control  is 
permitted  by  the  treaty  between  Bavaria  and  the  North 
German  Union,  providing  for  the  union  of  these  two  states 
in  the  Empire.2 

To  these  exemptions  expressly  mentioned  in  the  constitu- 
tion the  commentators  add  those  contained  in  the  treaty 
above  mentioned,  viz ;  the  control  of  marriage  relations  and 
insurance  of  realty.3  Laband  even  adds  exemptions  in  regard 
to  the  fixing  of  the  normal  standard  of  weights  and  measures, 
and  in  regard  to  the  issue  of  bank  notes  created  by  imperial 
legislation.4  This  seems  to  be  altogether  strained  and  exag- 
gerated. As  I  have  said  above,  I  can  go  no  farther  than  the 
treaties  made  between  the  North  German  Union  and  the 
several  South  German  states  providing  for  their  entrance 
into  the  Union,  and  mentioned,  as  to  certain  of  their  pro- 
visions, in  the  law  putting  the  revised  constitution  of  the 
Empire  into  force,  as  still  binding.  That  makes  confusion 
enough.  Anything  more  stands  upon  no  ground  either  in 
science  or  law. 

Next  in  the  order  of  extent  of  exemption  comes  Wurttem- 
berg.  The  constitution  provides  that  Wurttemberg  shall 
be  exempt  from  the  legislation  and  supervision  of  thff 
imperial  government  in  regard  to  the  taxation  of  domestic 
liquors  and  beer;5  in  regard  to  the  regulation  of  the  internal 
postal  and  telegraphic  system,  and  the  postal  and  telegraphic 
intercourse  with  her  immediate  foreign  neighbors;6  and  in 
regard  to  the  regulation  of  the  military  system,  except  so  far 
as  imperial  control  is  permitted  by  the  treaty  of  the  21-25 
of  November,   1870,  between  Wurttemberg  and  the   North 

1  Reichsverfassung,  Art.  52. 

2  Ibid.  Schlussbestimmung  zum  XI.  Abschnitt. 
8  Bayerisches  Schlussprotokoll,  I,  IV. 

4  Laband,  Das  Staatsrecht  ties  deutschen  Reiches,  Bd.  I,  S.  112. 
8  Reichsverfassung,  Art.  35.  6  Ibid.  Art.  52. 


1 62  Organization  of  the  State. 

German  Union.  The  commentators  add  to  these  the  exemp- 
tion, contained  in  this  same  treaty,  of  Wurttemberg  from 
the  power  of  the  imperial  government  to  introduce  the  one 
pfennig  freight  charge  upon  the  railways  of  Wurttemberg.1 
This  treaty  is  mentioned  in  the  law  empowering  the  Emperor 
to  proclaim  the  revised  constitution  in  force,  and  this  exemp- 
tion is  declared  therein  to  be  unchanged  by  the  constitution. 

Lastly,  Baden  is  exempted  by  the  constitution  from  the 
legislation  and  supervision  of  the  imperial  government  in 
regard  to  the  taxation  of  domestic  liquors  and  beer.2 

The  commentators  Hanel  and  von  Ronne  speak  of  an  ex- 
emption of  Oldenburg  from  the  power  and  duty  of  the  impe- 
rial government  to  maintain  the  chaussee-tolls  throughout  the 
Empire  at  the  Prussian  rates  of  1828.3  They  find  this  duty 
imposed  upon  the  imperial  government,  and  this  exemption 
of  Oldenburg  from  its  operation,  in  the  22d  article  of  the 
customs-union  treaty  of  the  8th  of  July,  1867,  which  they 
claim  to  be  a  part  of  the  present  constitution.  Article  40 
of  the  constitution  declares  that  the  provisions  of  the  cus- 
toms-union treaty  of  the  8th  of  July,  1867,  shall  remain  in 
force  in  so  far  as  they  shall  not  be  changed  by  law  or  consti- 
tutional amendment  as  the  particular  case  may  require.4  If, 
therefore,  this  treaty  guarantees  a  special  exemption  to  a  par- 
ticular commonwealth,  they  argue,  that  it  can  be  now  with- 
drawn only  by  constitutional  amendment  in  its  exceptional 
form,  i.e.  only  by  consent  of  the  commonwealth  so  privileged. 

There  are  two  other  points  to  be  explained  before  I  leave 
this  most  confusing  subject.  The  first  is  in  regard  to  the 
organ  through  which  the  privileged  commonwealth  shall  ex- 
press its  assent  or  dissent  in  reference  to  a  change  of  its 
specifically  guaranteed  right.  I  think  it  is  now  the  universal 
view  that  its  representation   in  the  Federal  Council  is  the 

1  Wiirttembergischer  Schlussprotokoll,  2. 

2  Reichsverfassung,  Art.  35. 

3  Von  Ronne,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  II,  Erste  Abtheilung 
S.  46.  4  Reichsverfassung,  Art.  40. 


Sovereignty  in  the  German  Imperial  Constitution.    163 

proper  constitutional  organ  for  this  purpose,  and  that  the 
commonwealth  is  bound  by  the  acts  of  that  organ  in  this 
respect.  If  that  organ  should  act  contrary  to  the  instruc- 
tions of  the  executive  which  appoints  it,  or  if  the  legislature 
of  the  particular  commonwealth  should  disapprove  the  in- 
structions of  the  executive,  the  questions  which  would  arise 
therefrom  are  internal  to  the  particular  commonwealth.  The 
imperial  government  will  not  inquire  into  any  of  these  matters, 
but  will  treat  the  word  and  act  of  the  representatives  in  the 
Federal  Council  as  final  and  irrevocable.1 

The  second  point  is,  that  the  consent  of  the  privileged 
commonwealth  to  a  change  of  its  specific  constitutional  right 
does  not  do  away  with  the  power  of  the  fourteen  voices  to 
veto  the  change.  The  condition  that  less  than  fourteen 
voices  must  be  found  in  the  negative  must  be  fulfilled,  as 
well  as  that  the  voice  of  the  privileged  commonwealth  must 
not  be  found  in  the  negative.2 

My  criticism  of  this  organization  of  the  state  within  the 
constitution  is  based  upon  three  considerations.  The  first  is 
the  lack  of  correspondence  between  it  and  the  real  power 
back  of  the  constitution,  the  second  is  the  fact  that  it  is  not 
wholly  sovereign,  and  the  third  is  the  confusion  in  organiza- 
tion of  the  state  with  the  government. 

First.  The  real  power  back  of  the  constitution  is,  as  we 
have  seen,  the  German  people  under  the  lead  of  the  Prussian 
organization.  The  power  of  the  Prussian  arms  established 
the  German  Empire.  The  many  and  in  some  respects  petty 
and  misleading  legal  forms  employed  in  the  formal  part  of  the 
work  must  never  blind  us  as  to  where  the  real  power  was  and 
is.  As  the  Germans  would  say,  "  Preussen  ist  Deutschland 
im  werden  begriffen ;"  which  Mr.  Emerson  would  have  trans- 
lated,  "  Prussia  is   Germany  in  the  making."     Now,  there- 

1  Von  Ronne,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  II,  Erste  Abtheilung 
S.  36  ff.;    Schulze,  Lehrbuch  des  deutschen  Staatsrechtes,  Zweites  Buch,  S.  19. 

2  Laband,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  SS.  1 14,  115  . 


164  Organization  of  the  State. 

fore,  any  organization  of  the  sovereignty  within  the  constitu- 
tion which  would  prevent  the  whole  German  people  and  the 
Prussian  organization  from  amending  the  constitution  is  more 
or  less  artificial.  It  prevents  the  natural  development  of  the 
German  state.  It  sets  law  in  opposition  to  fact,  the  result  of 
which,  in  the  long  run,  will  be  a  period  of  stagnation  fol- 
lowed by  a  period  of  violent  changes. 

The  constitutional  provision  which  gives  to  a  majority  of 
the  representatives  of  the  whole  German  people,  or  to  the 
Prussian  executive,  the  power  to  prevent  an  amendment  to 
the  constitution  is  certainly  a  truthful  legalization  of  the 
facts  ;  but  that  is  only  one  side  of  this  transcendent  question. 
The  mere  power  to  prevent  is  not  the  test  of  sovereignty  : 
the  sovereign  must  also  have  the  power  to  overcome  the 
attempt  of  any  other  force  to  prevent.  When,  therefore,  we 
reflect  that,  according  to  the  organization  of  the  sovereignty 
within  the  imperial  constitution,  the  whole  German  people 
together  with  the  executives  of  Prussia,  Bavaria,  Saxony, 
Wtirttemberg,  Baden,  Hesse,  Brunswick,  Mecklenburg- 
Schwerin,  Lubeck,  Bremen,  and  Hamburg  could  not  legally 
change  the  constitution  upon  a  single  point,  in  case  the 
fourteen  petty  princes  of  Waldeck,  Reuss,  Lippe,  etc.  should 
object,  we  cannot  fail  to  see  that  upon  this  side  of  the 
question  the  organization  of  the  sovereignty  within  the  con- 
stitution departs  very  far  from  the  real  conditions  of  power 
back  of  the  constitution. 

And  when,  in  the  second  place,  we  come  to  the  provision 
which  recognizes  to  a  single  prince  the  power  to  prevent  con- 
stitutional development  by  legal  means  upon  many  subjects 
which  naturally  concern  the  entire  German  state,  thus  really 
dethroning  the  sovereign  by  making  the  will  of  its  subject 
superior  to  its  own  will,  then  must  every  healthy  mind  come 
to  the  conclusion  that  there  is  not  only  incompleteness,  but 
positive  error,  in  such  an  organization  of  the  state.  It  does 
not  require  a  great  deal  of  scientific  reflection  to  detect  the 


Sovereignty  in  the  German  Imperial  Constitution.    165 

root  of  the  error.  It  lies  in  the  doctrine  of  the  federal  state. 
I  contend  that  there  is  no  such  thing  in  political  science  as  a 
federal  state  ;  that  this  political  adjective  is  applicable  only 
to  government ;  and  that  the  attempt  to  make  a  federal  state 
in  law  is  caused  by  confounding  the  conceptions  of  state  and 
government.  This  political  phenomenon  always  appears  in 
that  period  of  the  history  of  a  state  when,  through  the  expan- 
sion of  the  state,  the  organization  of  the  sovereignty  suffers 
natural  changes  which  do  not  express  themselves  immediately 
in  new  forms  of  law.  The  dull  mind  of  the  average  legis- 
lator cannot  at  once  be  made  conscious  of  such  changes. 
It  takes  them  in  only  piecemeal,  and  formulates  them  only 
piecemeal,  and  is  always  deceived  by  the  tempting  conceit 
that  the  whole  thing  is  a  matter  of  legislative  will. 

The  third  great  difficulty  with  the  organization  of  the  state 
in  the  German  constitution  is  its  confusion  with  the  govern- 
ment. The  sovereign  acts  through  the  ordinary  organs  of 
legislation  and  according  to  the  ordinary  forms  of  legislation ; 
and  its  acts  are  distinguished  from  the  ordinary  acts  of  the 
legislature  only  by  the  extraordinary  majority  required  in  the 
Federal  Council  for  their  validity.  The  first  consideration, 
therefore,  as  to  any  project  which  is  presented  in  either 
house  of  the  imperial  legislature  is  whether  it  be  a  project 
of  ordinary  law  or  of  constitutional  amendment  and,  if  the 
latter,  whether  it  touches  a  specifically  guaranteed  right  of  a 
particular  commonwealth.  Who  shall  decide  these  questions  ? 
The  constitution  makes  no  express  provision  in  regard  to  such 
a  power.  If  it  makes  any  provision,  it  must  be  by  implication. 
Some  of  the  commentators  hold  that  this  is  a  question  of 
constitutional  interpretation,  to  be  determined  preliminary  to 
the  passage  of  the  bill,  and  that  the  constitution  impliedly 
vests  this  power  in  the  legislature,  since  the  legislature  must 
exercise  the  same  whenever  it  passes  any  act ;  and  that  the 
power  is  to  be  exercised  in  the  manner  of  ordinary  legisla- 
tion, i.e.  by  vote  of  the  simple  majority  in  the  Federal  Coun- 


1 66  Organization  of  the  State. 

cil  and  in  the  Diet.1  But  if  this  be  true,  then  what  becomes 
of  that  most  vital  power  of  the  King  of  Prussia  to  veto  any 
proposition  for  constitutional  change  through  his  more  than 
fourteen  voices  in  the  Federal  Council  ?  The  simple  majority 
in  the  Federal  Council  and  in  the  Diet  would  only  find  it 
necessary  to  declare  a  project  for  changing  the  constitution 
to  be  a  project  of  ordinary  law,  and  the  Prussian  government 
would  be  helpless.  Moreover,  of  what  value  would  be  the 
constitutional  reservation  of  specific  rights  to  particular  com- 
monwealths, and  the  requirements  that  these  rights  shall  not 
be  changed  without  the  consent  of  the  particular  common- 
wealths, if  the  simple  majority  in  the  Federal  Council  and  in 
the  Diet  could  legally  avoid  this  requirement  through  this 
power  of  preliminary  interpretation  ? 

Other  commentators  have  been  so  impressed  by  this  con- 
sideration that  they  have  found  in  the  Emperor's  prerogative 
of  promulgating  the  laws  the  power  to  examine  their  contents 
and  determine  therefrom  their  character  and  leave  them 
unpromulgated  if,  in  the  Emperor's  opinion,  they  have  not 
been  passed  in  the  manner  and  with  the  legislative  majority 
prescribed  by  the  constitution.2  But  what  a  tremendous 
power  this  would  place  in  the  hands  of  the  Emperor.  He 
would  only  find  it  necessary  to  declare  any  project  distasteful 
to  him  a  constitutional  amendment  in  order  to  be  able  to 
veto  it  in  the  Federal  Council  by  the  Prussian  votes.  More- 
over, this  power  of  the  Emperor  would  not  legally  protect 
the  other  commonwealths  against  an  attempt  of  the  imperial 
legislature  to  deprive  them  of  their  specifically  guaranteed 
rights  by  the  power  of  interpretation.  It  would  protect 
Prussia  only.  It  may  be  said,  of  course,  that  the  simple 
majority  of  the  Federal  Council  and  of  the  Diet  on  the  one 
side,  or  the  Emperor  on  the  other,  would  not  so  abuse  the 

1  Von  Ronne,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  II,  Erste  Abtheilung, 

S.3S- 

2  Schulze,  Lehrbuch  des  deutschen  Staatsrechtes,  Zweites  Buch,  S.  119;  La- 
band,  Das  Staatsrecht  des  deutschen  Reiches,  Bd.  I,  S.  549  ff. 


Sovereignty  in  the  Germa?i  Imperial  Constitution.    167 

power  of  interpretation  as  to  achieve  the  results  above  indi- 
cated ;  but  we  are  treating  of  law  now,  not  of  personal  dispo- 
sition ;  not  of  what  probably  would  be,  but  of  what  might  be. 

This  close  connection,  almost  identification,  of  the  organi- 
zation of  the  state  with  the  government,  has  already  led  to 
some  indistinctness  as  to  what  is  constitutional  law  and  what 
merely  ordinary  law.  For  example  :  a  project  of  law,  which 
could  be  passed  by  the  imperial  legislature  only  after  an 
amendment  to  the  constitution  had  been  made  empowering 
the  legislature  thereto,  has  been  considered  valid  without 
such  formal  preliminary  change  of  the  constitution,  provided 
it  shall  have  been  passed  by  a  majority  sufficient  to  have 
made  the  constitutional  change.1  Now  is  this  law  a  part  of 
the  constitution  ?  It  has  been  held  by  precedent  that  it  is 
not  as  to  form,  only  as  to  matter,  and  that  it  may  be  changed 
subsequently  as  a  piece  of  ordinary  legislation,  even  though 
the  change  would  involve  further  modifications  of  the  original 
constitutional  provision.2  All  this  is  most  unscientific  and 
confusing.  The  question  of  amendment  should  be  considered 
and  decided  separately,  apart  from  and  antecedent  to  the 
passage  of  any  law  authorized  by  such  amendment.  If  the 
organization  of  the  state,  the  constitution-making  power,  were 
distinct  from  the  government,  this  source  of  confusion  would 
not  exist. 

Of  course  the  German  state  may  reorganize  itself  in  the 
constitution  ;  but  it  can  do  so,  legally,  only  through  the  forms 
of  procedure  prescribed  therein  for  its  present  organization. 
The  likelihood  of  its  being  able  to  do  so  in  fact  is  not,  there- 
fore, great.  It  is  more  probable  that  the  reappearance  of  the 
actual,  though  unorganized,  power  back  of  the  constitution 
will  precede  any  further  advance  in  the  development  of  the 
fundamental  principles  of  the  constitution.  If  so,  however, 
the  organization  of  the  state  within  the  constitution  will  have, 
so  far,  failed  of  its  purpose. 

1  Laband,  Das  Staatsrecht  ties  deutschen  Reiches,  Bd.  I,  S.  547  ff.       2  Ibid.,  S.  549. 


1 68  Organization  of  the  State. 


CHAPTER   IV. 

THE    ORGANIZATION    OF     THE    STATE    IN    THE    FRENCH 
CONSTITUTION. 

The  eighth  article  of  that  part  of  the  constitution  passed 
in  February  of  1875  reads  as  follows:  "The  chambers  shall 
have  the  power,  upon  their  own  motion,  or  upon  the  motion 
of  the  President  of  the  Republic,  to  determine,  separately  and 
by  absolute  majority  in  each,  whether  a  revision  of  the  con- 
stitution shall  be  undertaken.  After  each  of  the  two  cham- 
bers shall  have  passed  this  resolution  in  the  affirmative  they 
shall  unite  in  National  Assembly  and  proceed  to  the  revision.1 
The  propositions  of  revision  shall  be  valid  parts  of  the  con- 
stitution when  voted  by  an  absolute  majority  of  the  members 
composing  the  National  Assembly."2 

These  provisions  are  quite  clear  and  very  simple.  They 
require  but  little  explanation  and  not  a  great  deal  of  criticism. 

1.  As  to  the  principles  of  the  composition  of  the  two 
chambers,  we  may  say  here,  generally,  that  they  both  pro- 
ceed from  universal  suffrage,  and  that  the  one  is  chosen  by 
direct  and  the  other  by  indirect  election.  Their  power  to 
initiate  and  ordain  the  revision  of  the  constitution  is  thus 
popular  sovereignty,  pure  and  simple. 

2.  As  to  the  procedure  in  the  chambers  when  acting  sep- 
arately, we  may  say  that  the  constitution  leaves  all  questions 
regarding  the  inception  of  the  motion  for  revision  to  be  set- 
tled by  each  chamber  for  itself,  and  only  requires  that  in  the 

1  Loi  relative  a  l'organisation  des  pouvoirs  publics,  25-28  fevrier,  1875,  Art.  8. 
a  Ibid. 


The  Sovereignty  in  the  French  Constitution.       169 

passage  of  the  resolution  the  necessary  majority  shall  be 
the  absolute  majority,  i.e.  the  majority  of  all  the  seats  in  the 
chamber. 

The  constitution  furthermore  leaves  it  to  the  two  cham- 
bers to  determine  the  exact  time  of  meeting  in  joint  assem- 
bly. There  is,  therefore,  no  power  in  any  body  outside  of 
the  chambers  to  hasten,  delay  or  frustrate  the  meeting  of  the 
National  Assembly. 

Lastly,  the  constitution  leaves  everything  to  the  National 
Assembly  in  regard  to  the  making  of  the  revision,  except  the 
official  organization  of  the  Assembly  and  the  principle  of  the 
majority  necessary  to  vote  the  revision.  It  makes  the  bureau 
of  the  National  Assembly  to  consist  of  the  President,  Vice- 
Presidents  and  Secretaries  of  the  Senate  ;  and  fixes  the 
majority  for  voting  the  revision  at  the  absolute  majority,  i.e. 
the  majority  of  all  the  seats  in  the  Assembly. 

3.  The  first  element  of  uncertainty  in  these  provisions  at- 
taches to  the  question  whether  the  National  Assembly  may 
proceed  to  a  revision  of  the  constitution  in  regard  to  subjects 
which  the  two  chambers  have  not,  in  separate  preliminary 
session,  resolved  to  consider.  If  the  separate  resolutions  shall 
have  been  general  and  unlimited,  then,  of  course,  any  subject 
whatsoever  may  be  considered  and  decided  in  the  National 
Assembly.  If,  on  the  other  hand,  the  chambers  shall  have 
specified  the  subjects  in  regard  to  which  they  deem  revis- 
ion necessary,  and  in  regard  to  which  alone  therefore  they 
agree  to  go  into  joint,  i.e.  National,  Assembly,  then  the  ques- 
tion becomes  pertinent  and  important.  Lebon  contends  that 
the  importance  of  this  question  is  chiefly  theoretic.1  His 
argument  is,  that  since  the  personnel  of  the  two  chambers 
and  of  the  National  Assembly  is  the  same,  therefore  the 
majorities  in  the  two  chambers  form  the  majority  in  the  joint 
assembly,    and    that,    therefore,    if    the    National    Assembly 

1  Das  Staatsrecht  der  franzosischen  Republik,  S.  74. 


170  Organization  of  the  State. 

resolves  to  consider  subjects  not  specified  in  the  acts  of  the 
separate  chambers,  it  must  be  presumed  that  each  chamber 
then  and  thereby  consents  to  the  same. 

This  seems  to  me  to  be  superficial.  In  the  first  place,  it 
ignores  the  fact  that  the  number  of  members  of  the  separate 
chambers  is  not  the  same.  There  are  but  three  hundred 
senators  to  five  hundred  and  seventy-three  deputies.1  This 
difference  alone  would  enable  the  deputies  to  overpower  the 
senators  in  National  Assembly  and  force  upon  them  constitu- 
tional revision  in  regard  to  subjects  which  they,  in  separate 
assembly,  would  never  have  consented  to  bring  before  the 
joint  assembly.  The  fact  is,  that  when  the  Constituent  Con- 
vention ordained  the  constitution  of  1875-76,  the  Legitimists, 
Orleanists  and  Bonapartists  made  up  together  the  majority  in 
that  body.  They  constructed  the  Senate  so  as  to  make  it 
the  representative  of  royalty  as  against  republicanism,  and 
they  meant  to  furnish  the  Senate  with  the  power  to  prevent 
the  deputies  from  revising  the  constitution  at  their  will.  It 
is  true  that  the  republicans  are  now  in  majority  in  the  Sen- 
ate, but  the  Senate  is  still  far  more  conservative  in  its  repub- 
licanism than  the  Chamber  of  Deputies,  and,  therefore,  a  con- 
flict may  still  arise  between  the  two  bodies  concerning  the 
fundamental  principles  of  the  organic  law.  In  the  second 
place,  it  is  conceivable  that  if  the  two  chambers  were  com- 
posed of  the  same  number  of  members,  still  the  majority  in 
the  National  Assembly  might  not  represent  the  majorities 
in  the  two  chambers  taken  separately.  Yea,  it  is  even  con- 
ceivable that  a  practically  solid  Senate,  if  supported  by  a 
respectable  minority  of  the  deputies,  might  overcome  the 
majority  of  the  deputies  in  National  Assembly  and  force 
revision  of  the  constitution  in  regard  to  subjects  which  the 
deputies,  in  separate  session,  would  never  have  agreed  to 
bring  before  the  joint  assembly.     It  seems  to  me  manifest, 

1  Almanach  de  Gotha,  1890,  p.  696. 


The  Sovereignty  in  the  French  Constitution.      1 7 1 

therefore,  that  this  question  is  not  merely  or  chiefly  theoretic, 
but  may  at  any  moment  become  intensely  practical. 

We  shall  do  well,  therefore,  to  examine  the  constitution 
narrowly  to  see  if,  perchance,  we  may  find  any  means  for  its 
solution.  I  am  not  able  to  discover  any,  unless  they  be  in  the 
power  of  the  President,  with  the  consent  of  the  Senate,  to 
dissolve  the  Chamber  of  Deputies.  Lebon  considers  that  the 
ordinary  legislative  session  of  the  two  chambers  is  to  be 
regarded  as  continuing  during  National  Assembly.  The  two 
chambers  may  therefore  continue  to  act  separately,  as  well  as 
jointly,  during  such  a  period.  If  the  deputies  should  under- 
take to  overpower  the  senators  in  National  Assembly  (and  this 
would  be  the  event  most  likely  to  occur),  the  Senate  might 
meet  in  separate  session  and  call  upon  the  President  to  dis- 
solve the  Chamber  of  Deputies  ;  and  if  the  President  should 
respond  affirmatively,  the  session  of  the  National  Assembly 
might  thus  be  closed  by  the  legal  termination  of  the  man- 
dates of  a  majority  of  its  members.1 

I  doubt  very  much  if  the  President  has  any  such  power 
over  the  National  Assembly.  I  think  the  National  Assembly 
is  entirely  exempt  from  the  powers  of  the  President,  whether 
exercised  directly  or  indirectly.  The  National  Assembly  is 
the  organization  of  the  state.  The  President  is  only  a  part 
of  the  government.  Unless,  therefore,  we  mean  to  make  a 
branch  of  the  government  sovereign  over  the  state,  we  must 
dismiss  this  idea  as  untenable.  Moreover,  there  are  means 
provided  by  the  constitution  and  developed  through  practice 
whereby  any  move  of  the  kind  above  indicated  might  be  prac- 
tically frustrated  by  the  deputies.  For  example,  the  consti- 
tution provides  that  every  act  of  the  President  shall  be  signed 
by  a  minister,2  and  that  the  ministers  are  responsible  collec- 
tively and  individually  to  the  chambers  for  their  political  acts.3 

1  Das  Staatsrecht  der  franzosischen  Republik,  S.  75. 

2  Loi  relative  a  l'organisation  des  pouvoirs  publics,  25-28  fevrier,  1875,  Art.  3» 
§6. 

8  Ibid.,  Art.  6,  §  I. 


172  Organizatio7i  of  the  State. 

By  the  exercise  of  its  power  over  the  budget  the  Chamber  of 
Deputies  has  now  made  the  ministry  practically  responsible 
to  itself  alone.  No  minister  therefore  would  now  sign  a 
decree  of  the  President  dissolving  the  Chamber  of  Deputies, 
unless  it  were  practically  certain  that  the  new  election  would 
return  a  different  political  majority  to  that  chamber  from 
the  existing  one.  Practically  no  minister  would  now  take 
any  such  desperate  chances.  We  must  conclude,  therefore, 
that  the  constitution  provides  no  method  whereby  limitations 
sought  to  be  placed  upon  the  powers  of  the  National  Assembly 
by  either  of  the  chambers  in  separate  session  can  be  realized 
against  the  will  of  the  majority  in  the  National  Assembly, 
and  that  practice  has  not  yet  worked  out  any.  This  result 
accords  with  sound  theory.  The  National  Assembly  is  the 
organization  of  the  state.  No  branch  of  the  government 
could,  therefore,  exercise  compulsion  over  it  without  commit- 
ting coup  d'e'tat ;  i.e.  without  dethroning  the  sovereign. 

Curiously  enough,  the  National  Assembly  has  undertaken 
to  tie  its  own  hands  upon  a  single  subject.  It  enacted  a 
constitutional  amendment  in  August  of  the  year  1884  which 
declares  that  the  republican  form  of  government  shall  never 
be  subject  to  revision.1  There  is  no  power,  however,  outside 
of  the  Assembly  to  hold  it  to  this  pledge.  It  is,  therefore, 
only  a  self-limitation,  which  the  Assembly  may,  at  any 
moment,  remove  through  the  exercise  of  the  same  power 
by  which  it  was  imposed.  It  is  simply  a  bit  of  useless 
verbiage. 

It  must  be  conceded,  finally,  that  when  compared  with  the 
three  preceding  systems  which  I  have  treated,  the  French 
constitution  has  gone  farther  in  the  development  of  an  inde- 
pendent organization  of  the  state,  distinct  from  the  organiza- 
tion of  the  government  and  possessing  more  completely  all 
the  elements  of   sovereignty,  both  in  theory  and  practice, 

1  Loi  Constitutionnelle  du  13-14  Aofit,  1884,  Art.  2,  §  2. 


The  Sovereignty  in  the  French  Constitution.     173 

than  any  of  the  others.  The  identity  of  personnel  in  the 
National  Assembly  and  in  the  legislative  chambers  is  the  one 
point  in  which  the  constitution  fails  in  logical  perfection. 
There  are  indeed  practical  advantages  in  this,  viz;  it  does 
away  with  the  cost  and  exertion  attendant  upon  a  special 
election,  and  it  creates  a  National  Assembly  in  quasi-perma- 
nence ;  but  on  the  other  hand  it  is  the  source  of  some  diffi- 
culties, as  I  have  already  demonstrated. 

The  political  scientists  and  the  statesmen  have  yet  to  solve, 
in  logical  and  practical  completeness,  this  question  of  the 
permanent  organization  of  the  state  distinct  from  the  organ- 
ization of  the  government  and  in  possession  of  complete 
sovereignty  over  both  the  individual  and  the  government. 
This  is  the  most  important  question  of  political  science  and 
constitutional  law.  The  failure  to  deal  with  it  clearly  and 
intelligently  has  produced  inexpressible  confusion  in  the  con- 
ceptions both  of  liberty  and  of  government.  Its  correct 
elucidation  can  alone  light  our  way  along  the  labyrinths  of 
liberty,  law  and  government. 


Book  II. 

INDIVIDUAL   LIBERTY. 


3XKC 


CHAPTER   I. 

THE    IDEA,    THE    SOURCE,    THE    CONTENT    AND    THE    GUARANTY 
OF    INDIVIDUAL    LIBERTY. 

The  idea.  Individual  liberty  has  a  front  and  a  reverse,  a 
positive  and  a  negative  side.  Regarded  upon  the  negative 
side,  it  contains  immunities,  upon  the  positive,  rights ;  i.e. 
viewed  from  the  side  of  public  law,  it  contains  immunities, 
from  the  side  of  private  law,  rights.  The  whole  idea  is  that  of 
a  domain  in  which  the  individual  is  referred  to  his  own  will 
and  upon  which  government  shall  neither  encroach  itself,  nor 
permit  encroachments  from  any  other  quarter.  Let  the  latter 
part  of  the  definition  be  carefully  remarked.  I  said  it  is  a 
domain  into  which  government  shall  not  penetrate.  It  is 
not,  however,  shielded  from  the  power  of  the  state.  This 
will  be  easily  understood  by  those  who  have  carefully  perused 
the  previous  pages,  and  will  be  further  explained  when  we 
come  to  consider  the  source  of  this  liberty. 

There  is  no  point  in  regard  to  which  the  modern  state 
presents  so  marked  a  contrast  to  the  antique  and  the  mediae- 
val as  in  the  recognition  of  a  province  within  whose  limits 
government  shall  neither  intrude  itself  nor  permit  intrusion 
from  any  other  quarter.  This  is  entirely  comprehensible  from 
the  standpoint  of  the  reflection  that  the  theocracy  crushes 
the  individual  will  at  every  point  by  the  divine  will ;  that  the 
despotism  confounds  the  state  with  the  government,  and 
174 


General  Principles.  175 

vests  the  whole  power  of  the  state  in  the  government ;  and 
that  the  feudal  state  confounds  property  in  the  soil  with 
dominion  over  the  inhabitants  thereof,  substituting  thus  the 
petty  despotism  for  the  grand.  Not  until  the  rise  of  the 
modern  monarchic  governments  upon  the  ruins  of  feudalism 
do  we  become  aware  of  the  fact  that  a  new  constitutional 
principle  had  found  lodgment  in  the  consciousness  of  the  age. 
To  this  period  individual  liberty  had  existed  only  in  so  far 
as  the  government  allowed.  It  had  no  defence  against  the 
government  itself.  Now  the  understanding  tacitly  reached 
between  the  King  and  the  people  was :  that  while  the  people 
would  lend  their  strength  to  the  King  in  subjecting  the  nobles 
to  the  royal  law,  the  King  would  deliver  the  people  from  the 
feudal  oppression  ;  i.e.  while  all  governmental  power  should 
be  consolidated  in  the  King's  hands,  the  people  should  have 
a  sphere  of  autonomy,  not  only  against  the  nobles,  but 
against  the  King's  government  itself.  The  weak  point  in 
the  system  was  that  there  existed  no  organization  back  of 
the  King's  government  to  define  and  defend  this  sphere 
against  that  government.  Legally  the  conscience  of  the 
King  was  the  ultimate  resort.  The  organization  of  the  state 
back  of  the  King  was  then  the  indispensable  necessity.  This 
is  the  chief  point  in  what  is  termed  by  the  political  histo- 
rians the  constitutionalization  of  monarchy.  In  the  so-called 
constitutional  state,  i.e.  in  the  state  which  is  organized  back 
of  the  government,  which  limits  the  powers  of  the  gov- 
ernment, and  which  creates  the  means  for  restraining  the 
government  from  violating  these  limitations,  individual  liberty 
finds  its  first  real  definer  and  its  defender. 

The  source.  Therefore  we  affirm  that  the  state  is  the  source 
of  individual  liberty.  The  revolutionists  of  the  eighteenth 
century  said  that  individual  liberty  was  natural  right ;  that 
it  belonged  to  the  individual  as  a  human  being,  without 
regard  to  the  state  or  society  in  which,  or  the  government 
under  which,  he  lived.     But  it  is  easy  to  see  that  this  view  is 


176  Civil  Liberty. 

utterly  impracticable  and  barren  ;  for,  if  neither  the  state, 
nor  the  society  nor  the  government  defines  the  sphere  of 
individual  autonomy  and  constructs  its  boundaries,  then  the 
individual  himself  will  be  left  to  do  these  things,  and  that  is 
anarchy  pure  and  simple.  The  experiences  of  the  French  rev- 
olution, where  this  theory  of  natural  rights  was  carried  into 
practice,  showed  the  necessity  of  this  result.  These  expe- 
riences drove  the  more  pious  minds  of  this  period  to  formulate 
the  proposition  that  God  is  the  source  of  individual  liberty. 
" Dieu  et  mon  droit"  was  the  mediaeval  motto  made  new  again. 
But  who  shall  interpret  the  will  of  God  in  regard  to  individual 
liberty  ?  If  the  individual  interprets  it  for  himself,  then  the 
same  anarchic  result  as  before  will  follow.  If  the  state,  or 
the  church,  or  the  government  interprets  it,  then  the  individual 
practically  gives  up  the  divine  source  of  his  liberty ;  for  the 
question  of  the  interpretation  and  legal  formulation  of  indi- 
vidual rights  and  immunities  is  the  only  part  of  the  question 
which  has  any  practical  value.  These  two  theories  embodied  a 
natural  and  necessary  revulsion  of  sentiment  against  the  prac- 
tical system  of  the  pre-revolutionary  period,  which  accorded  to 
the  individual  only  such  liberty  as  the  government  might,  at 
the  moment,  permit.  But  they  overshot  the  mark  ;  and  a 
reaction  of  view  as  well  as  practice  naturally  resulted. 

The  present  moment  is  much  more  favorable  to  an  exact 
and  scientific  statement  of  these  relations.  We  may  express 
the  most  modern  principle  as  follows:  The  individual,  both 
for  his  own  highest  development  and  the  highest  welfare 
of  the  society  and  state  in  which  he  lives,  should  act  freely 
within  a  certain  sphere  ;  the  impulse  to  such  action  is  a 
universal  quality  of  human  nature  ;  but  the  state,  the  ultimate 
sovereign,  is  alone  able  to  define  the  elements  of  individual 
liberty,  limit  its  scope  and  protect  its  enjoyment.  The  indi- 
vidual is  thus  defended  in  this  sphere  against  the  government, 
by  the  power  that  makes  and  maintains  and  can  destroy  the 
government ;  and  by  the  same  power,  through  the  government, 


General  Principles.  177 

against  encroachments  from  every  other  quarter.  Against 
that  power  itself,  however,  he  has  no  defence.  It  can  give 
and  it  can  take  away.  The  individual  may  ask  for  liberties 
which  it  has  not  granted,  and  even  prove  to  the  satisfaction 
of  the  general  consciousness  that  he  ought  to  have  them  ;  but 
until  it  grants  them  he  certainly  has  them  not.  The  ulti- 
mate sovereignty,  the  state,  cannot  be  limited  either  by 
individual  liberty  or  governmental  powers  ;  and  this  it  would 
be  if  individual  liberty  had  its  source  outside  of  the  state. 
This  is  the  only  view  which  can  reconcile  liberty  with  law, 
and  preserve  both  in  proper  balance.  Every  other  view  sac- 
rifices the  one  to  the  other. 

The  content.  The  elements  of  individual  liberty  cannot  be 
generally  stated  for  all  states  and  for  all  times.  All  mankind 
is  not  to  be  found,  or  has  not  yet  been  found,  upon  the  same 
stage  of  civilization.  The  individual  liberty  of  the  Russian 
would  not  suffice  for  the  Englishman,  nor  that  of  the  English- 
man at  the  time  of  the  Tudors  for  the  Englishman  of  to-day. 
As  man  develops  the  latent  elements  of  his  own  civilization 
he  becomes  conscious  of  the  need  of  an  ever-widening  sphere 
of  free  action,  and  the  state  finds  its  security  and  well-being  in 
granting  it.  It  must  be  remarked,  on  the  other  hand,  how- 
ever, that  the  elements  of  individual  or  civil  liberty  are  much 
more  generally  and  uniformly  recognized  than  the  elements  of 
political  rights.  The  brotherhood  of  man  is  much  more  dis- 
tinctly expressed  through  the  former  than  through  the  latter. 
We  can,  therefore,  approach  nearer,  at  the  present  time,  to  a 
universal  system  of  individual  liberty  than  of  political  liberty. 
In  fact,  in  the  modern  states  the  realm  of  individual  liberty 
is  almost  identical,  no  matter  whether  the  governmental 
executive  holds  by  election  or  hereditary  right.  In  the  four 
states,  whose  constitutions  it  is  the  purpose  of  this  work  to 
compare,  the  disagreement  as  to  the  essence  of  the  rights 
and  immunities  which  constitute  individual  liberty  is  really 
but  slight.     The  divergence  is  chiefly  in  the  character  of  the 


178  Civil  Liberty. 

organs  which  guarantee  the  enjoyment  of  these  rights  and 
immunities. 

We  may  say,  generally,  that  in  all  these  states  individual 
liberty  consists  in  freedom  of  the  person,  equality  before  the 
courts,  security  of  private  property,  freedom  of  opinion  and 
its  expression,  and  freedom  of  conscience.  The  rights  of  the 
individual  in  respect  thereto  are  the  powers  conferred  upon 
him  by  the  state  to  exercise  certain  prerogatives,  and  to  call 
upon  the  government,  or  some  branch  thereof,  for  the  employ- 
ment of  sufficient  force  to  realize  these  prerogatives,  to  the  full 
extent  as  defined  by  the  state.  The  immunities  of  the  indi- 
vidual in  respect  thereto  are  his  exemptions  from  the  power 
of  the  government  itself,  or  any  branch  thereof,  to  enter  or 
encroach  upon  this  sphere,  except  in  the  manner  and  to  the 
extent  prescribed  by  the  state. 

The  guaranties.  The  means  for  protecting  individual  lib- 
erty, on  the  contrary,  as  I  have  already  indicated,  differ 
radically  in  the  four  states  whose  constitutional  law  we  are 
examining.  This  difference  appears  most  prominently  on 
that  side  of  individual  liberty  which  I  term  immunities.  In 
the  system  of  the  United  States,  it  is  the  sovereignty  back 
of  the  government  which  defines  and  defends  individual 
liberty,  not  only  against  all  forces  extra-governmental,  but 
also  against  the  arbitrary  encroachments  of  the  government 
itself.  The  sovereignty  back  of  the  government  vests  the 
courts  of  the  central  government  with  the  power  to  interpret 
the  prescripts  of  the  constitution  in  behalf  of  individual  rights 
and  immunities,  and  to  defend  the  same  against  the  arbitrary 
acts  of  the  legislature  or  executive.1  It  is  the  constitutional 
duty  of  the  executive  to  obey  these  final  decisions  of  the 
United  States  judiciary  in  regard  to  private  rights  and 
immunities,  and  to  execute  the  laws  in  accordance  therewith. 
Should  he  refuse,  however,   and   insist  upon  exercising,  in 

1  Constitution  of  the  United  States,  Art.  Ill,  sec.  2,  §  I. 


General  Principles.  179 

this  sphere,  powers  denied  him  by  judicial  decision,  or  upon 
exercising  his  rightful  powers  in  a  manner  forbidden  by  such 
decision,  there  is  no  remedy  provided  in  the  constitution 
unless  it  be  impeachment.1  Should  the  legislative  and  execu- 
tive powers  conspire  against  the  judiciary,  or  the  legislature 
fail  to  hold  the  executive  to  his  duty  by  impeachment,  the 
sovereignty  within  the  constitution  may  be  appealed  to,  so 
to  amend  the  constitution  as  to  prevent  the  nullification  of 
its  intent  by  its  governmental  servants.  It  is  difficult  to  see 
how  the  guaranty  of  individual  liberty  against  the  govern- 
ment itself  could  be  made  more  complete.  Its  fundamental 
principles  are  written  by  the  state  in  the  constitution ;  the 
power  to  put  the  final  and  authoritative  interpretation  upon 
them  is  vested  by  the  state  in  a  body  of  jurists,  holding 
their  offices  independently  of  the  political  departments  of 
the  government  and  during  their  own  good  behavior ;  while 
finally,  recourse  to  the  sovereign  itself  is  open  if  all  other 
defenses  fail. 

This  is  the  special  point  in  which  the  constitutional  law 
of  the  United  States  is  far  in  advance  of  that  of  the  Euro- 
pean states.  Of  the  three  European  constitutions  which  we 
are  examining,  only  that  of  Germany  contains,  in  any  degree, 
the  guaranties  of  individual  liberty  which  the  constitution 
of  the  United  States  so  richly  affords.  The  German  impe- 
rial constitution  has  made  a  beginning  in  this  direction,  but 
only  a  beginning.  A  few  of  the  rights  and  immunities  be- 
longing in  this  domain  are  written  in  the  constitution  itself 
by  the  act  of  the  sovereign,  the  state.2  No  department  of 
the  imperial  government,  therefore,  can  legally  violate  them. 
But  the  ultimate  power  of  interpreting  these  rights  and  im- 
munities is  not  vested  by  the  constitution  in  the  imperial 
judiciary.3     In  fact,  the  imperial  judiciary  is  not  created  by 

1  Constitution  of  the  United  States,  Art.  II,  sec.  4. 

2  Reichsverfassung,  Art.  3. 

8  Laband,  Das  Staatsrecht  das  deutschen  Reiches,  I.  Band,  S.  551  ff. 


180  Civil  Liberty. 

the  constitution  at  all.  It  owes  its  existence  to  a  statute  of 
the  imperial  legislature.1  It  is  therefore  unable  to  stand 
between  the  legislature  and  the  individual  in  the  interpreta- 
tion of  the  constitution.  The  legislative  interpretation  is  the 
more  ultimate.  It  is  not  certain  that  it  can  stand  between 
the  executive  and  the  individual  in  the  interpretation  of  the 
constitution.  The  most  reliable  commentator  upon  the 
German  constitution  ascribes  to  the  Emperor  the  power 
of  final  interpretation  of  the  constitutionality  of  the  laws.2 
Neither,  again,  has  the  imperial  legislature  the  power  to 
impeach  the  executive  for  encroaching  upon  the  sphere  of 
individual  liberty  guaranteed  by  the  constitution.  Lastly, 
there  is  no  way  provided  in  the  constitution  for  the  initiation 
of  an  amendment  to  the  constitution,  save  through  the  agency 
of  the  imperial  legislature  itself.3  Constitutionally,  then,  the 
immunities  of  the  individual  as  against  the  powers  of  the 
imperial  legislature  and  executive  taken  together  are  nothing; 
as  against  the  acts  of  the  legislature  and  executive  they  are 
what  these  bodies  resolve  to  allow  them  to  be.  This  does  not 
mean  that  the  individual  has  no  liberty  in  the  German  state. 
The  legislature  and  executive  have  created  for  him  a  sphere 
of  freedom,  and  have  made  it  very  nearly  coextensive  with 
the  same  domain  in  the  United  States.  It  simply  means 
that  the  guaranties  to  the  individual  against  the  government 
itself  are  still  wanting.  It  means  that  he  is  still  exposed 
to  the  possible  caprice  and  tyranny  of  the  legislative  and 
executive  powers.  It  means  that  almost  the  whole  power 
of  the  state  over  against  the  individual  is  still  vested  in  the 
government.  It  means  that  the  distinction  between  state 
and  government  is  still  in  its  infancy  in  this  system. 

In  the  French  system  there  is  not  the  slightest  trace  of  a 


1  Gerichtsverfassungsgesetz,  1877. 

2  Laband,  Das  Staatsrecht  des  deutschen  Reiches,  I.  Band,  S.  549  ff. 

3  Reichsverfassung,  Art.  78. 


General  Priiiciples*  181 

constitutional  guaranty  of  individual  liberty.1  The  legislative 
power  is  the  ultimate  interpreter  of  the  constitution  ;2  and 
the  machinery  for  amending  the  constitution  can  be  set  in 
motion  only  by  the  legislature.3  Moreover,  the  executive 
power  appoints  and  removes  at  pleasure  those  quasi-judicial 
persons  who  decide  controversies  which  arise  between  the 
individual  and  the  government  in  the  course  of  the  admin- 
istration of  the  law.4  The  regular  judicial  power  in  France 
is  created  by  the  legislature,  and  the  judges  hold  by  a 
tenure  and  for  a  term  designated  by  the  legislature.  The 
legislature  may,  therefore,  abolish  the  judicial  department  or 
modify  the  tenure  and  term  of  the  judges  in  any  manner 
which  it  may  choose  or  fancy.  Moreover,  the  ordinary  judi- 
ciary has,  as  above  indicated,  no  general  jurisdiction  over  con- 
troversies in  which  the  administration  is  a  party.  The  indi- 
vidual has  thus  generally  but  one  recourse  in  case  of  a  denial 
of  his  liberty  by  the  administration,  and  that  is  to  the  legisla- 
ture. The  legislature  cannot  impeach  the  President  in  defense 
of  the  individual  immunity,  unless  the  act  of  the  administra- 
tion in  violating  the  same  amounts  to  high  treason  in  the 
President ; 5  but  it  may  cause  a  change  of  ministry  at  its 
will,  and  it  may  impeach  the  ministers  in  case  their  acts  in 
violation  of  the  said  immunities  amount  to  crimes.  Against 
the  legislature  itself,  however,  the  individual  has  no  defense. 
This  does  not  mean  that  the  individual  has  no  liberty  in 
France.  In  fact,  the  individual  enjoys  very  nearly  the  same 
liberty  there  as  here.  It  means  simply  that  the  guaranties 
of  individual  liberty  against  the  powers  of  the  government 
itself  are  entirely  wanting.     It  means  that  in  regard  to  this 

1  Lebon,  Das  Staatsrecht  der  franzosischen  Republik,  S.  27. 

2  Ibid.  S.  23. 

3  Loi  relative  a  l'organisation  des  pouvoirs  publics,  25-28  fevrier,  Art.  8. 

4  Lebon,  Das  Staatsrecht  der  franzosischen  Republik,  S.  78. 

5  Loi  relative  a  l'organisation  des  pouvoirs  publics,  25-28  fevrier,  1875,  Art-  6, 
§§  1  and  2;  Loi  constitutionelle  sur  les  rapports  des  pouvoirs  publics,  16-18  juillet, 
1875,  Art.  12,  §  2. 


1 82  Civil  Liberty. 

subject  the  whole  power  of  the  state  is  vested  in  the  govern- 
ment. It  means  that  the  distinction  between  state  and 
government  is,  in  this  respect,  wholly  wanting. 

In  the  English  system,  while  there  are  no  constitutional 
guaranties  of  individual  liberty  against  the  Parliament,  either 
when  it  acts  as  constituent  assembly  or  when  it  acts  simply 
as  legislature,  the  individual  has  the  defense  of  the  regular 
courts,  i.e.  of  the  independent  judiciary,  against  executive 
encroachments  upon  his  liberty.  The  Parliament  is  the 
source  both  of  individual  liberty  and  of  the  courts,  and 
cannot  be  limited  or  restrained  by  either.  The  Parliament 
has  by  statutes  marked  out  a  large  domain  of  liberty  for  the 
individual ;  and  has  made  the  judiciary  the  special  guardian 
of  this  domain,  by  freeing  the  judicial  tenure  from  the  execu- 
tive power.  But  the  Parliament  may  by  statute  sweep  away 
every  vestige  of  this  liberty,  if  it  will,  and  abolish  the  judiciary; 
and  it  may,  furthermore,  cause  the  removal  of  any  judge 
either  by  impeachment  or  by  address  to  the  Crown.  It  is 
true,  as  I  have  demonstrated,  that  the  Parliament,  when 
acting  as  the  state,  is  somewhat  differently  organized  than 
when  acting  simply  as  legislature  ;  i.e.  that  the  Commons 
have  a  supremacy  over  the  Lords  and  the  King  in  the 
former  case,  while  in  the  latter  there  is  parity  of  powers 
between  them ;  but  this  difference  does  not  furnish  the 
individual  with  an  independent  way  of  appeal  to  the  state 
against  the  legislature.  The  appeal  must  be  made  tJirough 
the  body  against  which  it  is  made.  The  trouble  here  again 
is  that  the  whole  power  of  the  state  is  vested  in  the  govern- 
ment, and  that  no  sufficient  distinction  is  made  between 
the  state  and  the  government. 

It  will  thus  be  seen  that  individual  liberty  is  really  a  part 
of  constitutional  law  in  the  system  of  the  United  States 
only.  In  all  the  other  systems  it  is  substantially  statutory, 
Germany  alone  having  made  any  progress,  in  this  respect, 
out  of  the  old  system  of  governmental  absolutism.     I  dwell 


General  Principles.  183 

upon  this  point,  for  it  is  the  point  in  which  the  great  advance 
of  the  American  idea  over  the  European,  in  the  development 
of  constitutional  law,  is  most  distinctly  manifested.  I  dwell 
upon  it,  furthermore,  because  I  desire  to  explain,  at  the 
outset,  why  in  the  discussion  of  this  topic  I  shall  devote 
myself  almost  exclusively  to  the  consideration  of  the  consti- 
tution of  the  United  States. 


184  Civil  Liberty 


CHAPTER   II. 

THE      SYSTEM      OF     INDIVIDUAL     LIBERTY     PROVIDED      IN      THE 
CONSTITUTION    OF    THE    UNITED    STATES. 

When  the  constitution  of  the  United  States  issued  from 
the  convention  of  1787,  it  contained  several  provisions  touch- 
ing the  domain  of  individual  liberty,  and  when  this  instru- 
ment was  submitted  for  adoption,  much  was  said  in  the 
legislatures  of  the  commonwealths,  in  the  ratifying  conven- 
tions and  by  the  press  of  the  day  concerning  a  bill  of  rights, 
as  it  was  then  called,  which  should  make  the  domain  of  indi- 
vidual liberty  more  complete.  The  idea  was  not  that  the 
United  States  government  should  be  made  by  the  constitu- 
tion the  positive  defender  of  this  sphere  of  individualism, 
but  that  that  government  should  itself  be  more  expressly 
restrained  from  trenching  upon  this  sphere.  What  was  pro- 
posed was,  therefore,  rather  a  bill  of  immunities  than  of  rights. 
I  think  it  cannot  be  doubted  that  the  view  of  that  day  was 
that  the  so-called  "  States  "  were  in  the  main  the  proper  de- 
finers  and  defenders  of  individual  rights. 

The  opposition  to  the  adoption  of  the  "bill  of  rights,"  by 
way  of  amendment  to  the  original  draft  of  the  constitution, 
did  not  attempt  to  stand  upon  any  principle  worth  naming. 
The  argument  of  the  opposition  was,  in  brief :  that  the 
United  States  government  being  one  of  limited  powers,  the 
principle  of  constitutional  interpretation  in  reference  to  its 
powers  must  be  that  what  is  not  granted,  expressly  or  im- 
pliedly, is  denied;  and  that,  therefore,  the  "bill  of  rights" 
excepting  anything  was  not  necessary.  But  the  answer  to 
this :  that  the  powers  granted  might,  if  pressed  to  the  utmost 


In  the  Constitution  of  the  United  States.        185 

in  all  directions,  conflict  at  some  point  or  other  with  indi- 
vidual liberty,  proved  the  more  convincing.  The  first  ten 
amendments,  in  the  nature  of  such  a  bill,  were  framed  and 
passed  by  the  first  Congress  and  subsequently  ratified  by  the 
legislatures  of  the  commonwealths  in  sufficient  number  to 
make  them  parts  of  the  constitution. 

But  if  the  political  history  of  the  United  States  from  1790 
to  i860  taught  anything,  it  was  this:  That  the  so-called 
States  were  not  sufficient  guarantors,  to  say  the  least,  of  indi- 
vidual liberty,  and  that  the  United  States  government  must 
be  authorized  to  change  its  position  from  a  passive  non- 
infringer  of  individual  liberty  to  an  active  defender  of  the 
same  against  the  tyranny  of  the  commonwealths  themselves. 
The  thirteenth  and  fourteenth  amendments  express  this 
change  in  the  organic  law. 

We  may  now  proceed  to  the  analysis  in  detail  of  the  immu- 
nities guaranteed  to  the  individual  by  the  constitution  of  the 
United  States. 

A.    The  Immunities  against  the  Central  Government. 

An  immunity  is,  as  I  have  above  indicated,  a  defense  estab- 
lished by  the  constitution  in  behalf  of  the  individual  against 
the  powers  of  the  government.  The  chief  means  of  encroach- 
ing upon  the  domain  of  individual  liberty  which  necessarily 
lay  within  the  hands  of  government  are  the  powers  of  criminal 
legislation,  of  taxation  and  of  eminent  domain.  The  restric 
tions  placed  by  the  constitution  upon  the  exercise  of  these 
powers  by  the  government  are,  when  regarded  from  the  stand- 
point of  the  individual  thus  protected,  immunities. 

I.     The  Personal  Innnunities. 

The  central  government  has  no  general  power  of  crimi- 
nal legislation  in  those  parts  of  the  United  States  which 
enjoy  the  dual  or  federal  system  of  government ;  i.e.  in  the 
commonwealths.  Its  powers  in  this  regard,  in  and  for  these 
parts,   extend  to  only  three  species  of  crime,  viz ;  treason,1 

1  United  States  Constitution,  Art.  Ill,  sec.  3. 


1 86  Civil  Liberty 

counterfeiting  the  securities  and  current  coin  of  the  United 
States,  and  offences  against  the  Law  of  Nations.1  The  judi- 
cial department  of  the  central  government  has  criminal  juris- 
diction only  so  far  as  it  is  conferred  by  the  constitution  and 
the  statutes  of  Congress  made  in  accordance  therewith.2  The 
executive  power  is,  of  course,  confined  within  the  same  bound- 
aries. On  the  other  hand,  upon  the  high  seas,3  and  in  those 
parts  of  the  United  States  not  enjoying  the  dual  system  of 
government,  general  powers  of  legislation  and  administration 
in  respect  to  crime  are  conferred  upon  the  central  government 
by  the  constitution.4  But  the  powers  of  the  central  govern- 
ment in  regard  both  to  crimes  committed  within  the  common- 
wealths and  those  committed  upon  the  high  seas  and  within 
those  parts  of  the  United  States  not  yet  erected  into  common- 
wealths are  placed  under  many  important  limitations,  all  of 
which  are  of  the  character  of  individual  immunities,  as  follows : 

1.  The  Congress  can  pass  no  bill  of  attainder  or  ex  post 
facto  law;6  i.e.  the  legislative  department  shall  not  act  as 
a  court  and  convict  any  one  of  common  crime  by  its  reso- 
lutions ;  nor  pass  a  law  making  an  act,  innocent  at  the  time 
of  its  committal,  criminal ;  or,  if  the  act  be  already  a  crime, 
a  law  increasing  the  penalty  or  lessening  the  evidence  neces- 
sary to  conviction  or  altering  in  any  manner  the  situation 
of  the  accused  to  his  disadvantage.6 

2.  The  government  cannot  issue  or  authorize  general  war- 
rants of  search  or  arrest ;  but  all  warrants  must  rest  upon 

1  United  States  Constitution,  Art.  I,  sec.  8,  §  6  and  io. 

2  Ex  parte  Bollman,  U.  S.  Reports,  4  Cranch,  75;  United  States  v.  Hud- 
son, U  S.  Reports,  7  Cranch,  32;  United  States  v.  Coolidge,  U.  S.  Reports,  I 
Wheaton,  415;   United  States  v.  Bevans,  U.  S.  Reports,  3  Wheaton,  336. 

8  United  States  Constitution,  Art.  I,  sec.  8,  §  10. 

4  Ibid.  Art.  IV,  sec.  3,  §  2.  5  Ibid.  Art.  I,  sec.  9,  §  3. 

6  Calder  v.  Bull,  U.  S.  Reports,  3  Dallas,  386;  Ex  parte  Garland,  U.  S.  Re- 
ports, 4  Wallace,  333;   Kring  v.  Missouri,  107  U.  S.  Reports,  221. 

A  law  simply  enlarging  the  class  of  persons  who  may  testify  in  a  given  case  is 
not,  however,  ex  post  facto  in  its  application  to  offenses  committed  previous  to  its 
enactment.     Hopt  v.  Utah,  no  U.  S.  Reports,  574. 


In  the  Constitution  of  the  United  States.        187 

probable  cause ;  must  be  supported  by  an  oath  or  an  affirma- 
tion on  the  part  of  some  reliable  person  ;  must  particularly 
describe  the  place  to  be  searched  and  the  person  or  thing 
to  be  seized  ;  must  contain  the  name  of  the  person  ;  and  must 
state  with  reasonable  certainty  the  time,  place  and  nature  of 
the  offense.1 

3.  The  government  cannot,  except  in  time  of  war,  suspend 
the  writ  of  habeas  corpus  ;  i.e.  it  cannot  prevent  a  person, 
under  arrest  and  detention,  from  having  his  body  brought 
immediately  before  a  judge,  in  order  that  judicial  determi- 
nation of  the  question  of  his  further  detention  may  be 
had.2 

4.  The  government  cannot  require  a  bail  so  excessive  in 
amount  as  to  be  practically  a  denial  of  the  privilege  of 
bail.3 

5.  The  government  cannot  authorize  any  unreasonable 
delay  in  the  trial  of  an  individual  legally  held.4 

6.  The  government  cannot  authorize  prosecution  for  any 
crime,  the  punishment  of  which  is  so  grievous  as  the  depri- 
vation of  personal  liberty,  except  by  way  of  grand  jury  pre- 
sentment or  indictment ;  i.e.  except  upon  accusation  by  at 
least  twelve  men  of  the  country,  who,  it  is  presumed  from 
their  being  men  of  the  country  or  citizens,  have  no  govern- 
mental interest  in  the  oppression  of  their  fellow-citizens,  and 
will  not  seek  to  make  criminal  accusation  a  pretext  for  dis- 
posing of  political  opponents.5  Military  persons  do  not  enjoy 
this  immunity. 

7.  The  government  cannot  authorize  the  trial  of  any  person 
for  a  crime  or  for  a  misdemeanor,  the  punishment  of  which  is 

1  Constitution,  Amendments,  Art.  IV;  Ex  parte  Burford,  U.  S.  Reports,  3 
Cranch,  448. 

2  Constitution,  Art.  I,  sec.  9,  §  2. 

3  Constitution,  Amendments,  Art.  VIII. 

4  Ibid.  Art.  VI. 

5  Ibid.  Art.  V;  Ex  parte  Wilson,  114  U.  S.  Reports,  417;  Mackin  v.  United 
States,  1 1 7  U.  S.  Reports,  348. 


1 88  Civil  Liberty 

so  grievous  as  the  deprivation  of  personal  liberty,  except  by- 
way of  the  jury  process  ;  i.e.  except  by  the  participation  of 
the  community,  whose  peace  shall  have  been  violated,  in  the 
trial ;  and  except  the  rendering  of  the  verdict  be  by  the  unan- 
imous agreement  of  the  representatives  of  the  community.1 

8.  The  government  cannot  authorize  any  arbitrary  procedure 
in  the  trial.  It  cannot  deport  the  accused  for  trial  from  the 
commonwealth  and  district  in  which  the  crime  charged  shall 
have  been  committed,  or  from  the  place  already  assigned  by 
the  legislation  of  Congress  for  the  trial,  in  case  the  crime 
charged  shall  have  been  committed  outside  of  the  common- 
wealths.2 It  cannot  authorize  a  secret  trial.3  It  cannot  de- 
prive the  accused  of  the  right  to  have  counsel.4  It  cannot 
deny  to  the  accused  information  of  the  nature  and  cause  of 
his  arraignment.5  It  cannot  prevent  him  from  confronting 
the  witnesses  against  him.6  It  cannot  refuse  him  compulsory 
process  for  obtaining  witnesses  in  his  favor.7  It  cannot  com- 
pel him  to  give  testimony  against  himself,  either  by  word  of 
mouth  or  by  the  production  of  his  private  papers.8  It  cannot 
prosecute  him  a  second  time  for  the  same  offense,  after  a 
verdict  either  of  conviction  or  acquittal  shall  have  been  pro- 
nounced upon  him  by  a  lawful  jury  proceeding  upon  a  good 
indictment.9  And  it  cannot  deprive  him  of  his  life  or  liberty 
without  fulfilling  all  of  the  requirements  of  a  due  process  of 
law  ;10  i.e.  without  a  course  of  legal  proceedings  according  to 
those  rules  and  principles  definitely  contained  in  these  very 
provisions  of  the  constitution  which  we  have  just  been  con- 
sidering, and  upon  points  not  covered  by  these,  if  any,  accord- 
ing to  those  rules  and  principles  "  existing  in  the  common  and 
statute  law  of  England,  before  the  emigration  of  our  ances- 

1  Constitution,  Amendments,  Art.  VI;  Callan  v.  Wilson,  127  U.  S.  Reports,  540. 

2  Constitution,  Art.  Ill,  sec.  2,  §  3;   Amendments,  Art.  VI. 
8  Constitution,  Amendments,  Art.  VI.  4  Ibid. 

6  Ibid.  6  Ibid.  7  Ibid. 

8  Ibid.  Art.  V;  Boyd  v.  United  States,  1 16  U.  S.  Reports,  616. 

9  Constitution,  Amendments,  Art.  V.  10  Ibid. 


In  the  Constitution  of  the  United  States.        1 89 

tors,  and  which  are  shown  not  to  have  been  unsuited  to  their 
civil  and  political  condition  by  having  been  acted  on  by  them 
after  the  settlement  of  this  country." 

9.  The  criminal  concept  most  liable  to  abuse,  viz ;  that  of 
treason,  cannot  be  fixed  by  the  government.  The  constitu- 
tion itself  defines  it  as  the  "levying  of  war  against  the  United 
States,  or  adhering  to  the  enemies  of  the  United  States,  giv- 
ing them  aid  and  comfort."  Nor  can  the  government  so 
fashion  the  rules  of  evidence  in  a  trial  for  treason  as  to  secure 
an  easy  conviction  nor  attach  a  penalty  to  the  crime  which 
may  fall  upon  innocent  persons.  The  constitution  requires 
the  testimony  of  two  witnesses  to  the  same  overt  act  or  con- 
fession in  open  court  in  order  to  conviction,  and  ordains  that 
no  attainder  of  treason  shall  prevent  inheritance  of  property 
from  or  through  the  attainted  person,  or  work  the  forfeiture 
of  the  real  estate  belonging  to  the  attainted  person  longer 
than  during  his  or  her  life.1 

10.  The  government  cannot  authorize  the  imposition  of 
excessive  fines  or  the  infliction  of  cruel  or  unusual  punish- 
ments;2 i.e.  the  criminal  legislation  of  Congress  upon  the 
subjects  assigned  to  it  by  the  constitution  must,  in  the 
fixing  of  penalties,  follow  the  precedents  of  the  common 
law. 

11.  If  the  constitution  had  created  no  express  immunity 
of  the  individual  against  governmental  power  in  respect  to 
the  liberty  of  opinion  and  its  expression,  it  must  certainly 
have  been  inferred  as  existing  within  those  parts  of  the 
United  States  enjoying  the  federal  system  of  government, 
i.e.  within  the  commonwealths,  from  the  fact  that  the  consti- 
tution confers  no  power  upon  the  government  to  make  the 
free  exercise  of  opinion  and  its  expression  by  the  individual 
either  a  crime,  or  a  misdemeanor,  or  a  tort.     The  constitu- 

1  Constitution,  Art.  Ill,  sec.  3,  §  1,  2;  Ex  parte  Bollman  &  Swartwout,  U.  S 
Reports,  4  Cranch,  75;   Bigelow  v.  Forrest,  U.  S.  Reports,  9  Wallace,  339. 

2  Constitution,  Amendments,  Art.  VIII. 


190  Civil  Liberty 

tion,  however,  makes  the  principle  doubly  sure  by  giving 
expression  to  the  immunity.  It  ordains  that  Congress  shall 
make  no  law  abridging  the  freedom  of  speech,  or  of  the  press, 
or  the  right  of  the  people  peaceably  to  assemble,  and  to  peti- 
tion the  government  for  redress  of  grievances  ;  or  respecting 
an  establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof.1  These  restrictions  require  a  little  more  minute 
treatment,  since  they,  in  some  respects,  go  beyond  the  well- 
understood  principles  of  the  common  law. 

First.  The  freedom  of  speech  and  of  the  press.  Since 
the  constitution  confers,  neither  expressly  nor  impliedly, 
any  power  upon  the  general  government  to  control  these 
subjects,  except  in  the  provisions  authorizing  the  making  of 
all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States,  it  must  be 
concluded  that  this  immunity  is  complete,  within  the  com- 
monwealths, as  against  the  general  government ;  i.e.  the 
general  government  can  infringe  it  neither  by  way  of  censor- 
ship or  prevention  nor  by  way  of  punishment  for  its  use  or 
abuse.  Nevertheless  the  Congress  did,  in  the  year  1798, 
pass  an  act  for  the  whole  United  States,  making  the  writing, 
printing,  uttering  or  publishing  of  any  false,  scandalous  and 
malicious  writing  or  writings  against  the  government  of  the 
United  States  a  crime  punishable  by  fine  and  imprisonment;2 
and  several  persons  were  tried  and  convicted  under  this  act.3 
This  was  one  of  the  most  unpopular  statutes  which  the  Con- 
gress ever  enacted.  Its  constitutionality  was  doubted  by  a 
very  large  proportion  of  the  citizens  of  the  country.  It 
evoked  the  noted  Kentucky  and  Virginia  resolutions.4  It 
was  allowed  to  expire  in  1801,  without  any  attempt  to  renew 
it.     It  certainly  cannot  be  defended  except  from  the  stand- 

1  Constitution,  Amendments,  Art.  I. 

3  United  States  Statutes  at  Large,  vol.  i,  chap,  lxxiv,  sec.  2,  pp.  596-7. 

8  Cooper's  Case,  Wharton's  State  Trials,  659;   Haswell's  Case,  Ibid.,  684;  Cal- 
ender's Case,  Ibid.,  688. 

4  Elliot's  Debates,  vol.  iv,  pp.  528  ff. 


In  the  Constitution  of  the  United  States.        191 

point  of  the  extraordinary  or  war  powers  of  the  govern- 
ment. It  is  true  that  war  with  France  threatened,  but  it  was 
hardly  so  imminent  as  to  justify  the  assumption  of  war 
powers ;  still,  the  Congress  is  the  body  in  our  system  which 
has  the  power  of  ultimately  determining  that  question.1 

In  the  district  of  Columbia,  in  the  territories,  and  in 
places  within  a  commonwealth  the  jurisdiction  over  which 
shall  have  been  ceded  by  the  commonwealth  to  the  general 
government,  this  immunity  is  far  less  extensive  than  in  those 
parts  of  the  United  States  enjoying  the  dual  system  of  govern- 
ment. The  general  government  is  vested  by  the  constitu- 
tion with  general  as  distinguished  from  enumerated  powers 
in  the  above-mentioned  district,  territories  and  places.2  The 
rule  of  interpretation  as  regards  such  powers  is,  that  what 
is  not  denied  is  granted.  The  general  government  may, 
therefore,  control  the  expression  of  opinion  within  these 
places,  in  so  far  as  the  government  is  not  restrained  there- 
from by  some  provision  of  the  constitution.  The  restriction 
contained  in  article  first  of  the  amendments  is  expressed 
in  general  language.  It  is  not  limited  to  the  common- 
wealths, as  to  the  scope  of  its  action.  This  restriction 
upon  the  power  of  the  government  extends  therefore  to 
the  district,  the  territories  and  other  places  subject  to  the 
exclusive  jurisdiction  of  the  general  government.  The  ques- 
tion then  is  :  whether  in  such  parts  the  immunity  is,  as  in 
the  commonwealths,  total  or,  for  the  reasons  just  cited,  less 
than  total.  In  seeking  the  reply  to  this  question  we  must 
certainly  be  allowed  to  assume  as  point  of  departure  that  this 
restriction  was  not  intended  to  prevent  the  government  of 
the  United  States  from  introducing  and  administering  the 
law  of  slander  and  libel  for  the  protection  of  individual  reputa- 
tion in  these  parts.  The  common  law  never  held  the  freedom 
of  speech  and  of  the  press  to  be  in  any  measure  infringed  by 

1  Constitution,  Art.  I,  sec.  8,  §  n.  2  Ibid.,  Art.  IV,  sec.  3,  §  2. 


192  Civil  Liberty 

this  law ;  and  the  common  law  is  the  great  source  from  which 
we  draw  the  principles  of  interpretation  of  all  provisions  of  our 
constitutions  relating  to  private  rights  and  immunities.  If 
such  power  be  not  conceded  to  the  general  government,  then 
these  parts  and  places  would  be  without  any  law  of  slander 
and  libel,  which  would  be  an  unendurable  condition  in  a 
society  professing  to  exist  under  the  reign  of  law.  It  would 
inevitably  lead  to  the  re-establishment  in  practice  of  the 
duel  —  self-help  —  for  the  maintenance  of  personal  honor 
and  character.  I  hold,  therefore,  that  the  restriction  can 
only  mean  that  the  general  government  shall  create  no  un- 
usual law  of  slander  and  libel  in  those  parts  of  the  United 
States  subject  to  its  exclusive  jurisdiction,  but  must  follow, 
in  respect  to  these  subjects,  the  general  principles  of  our 
jurisprudence  as  derived  from  the  common  law  ;  i.e.  for 
example,  the  government  shall  not  make  criticisms  upon 
itself  or  upon  the  public  character  of  its  officials  slander  or 
libel,  nor  undertake  by  way  of  censorship  and  prevention  to 
prohibit  the  utterance  or  publication  of  anything.  This  I 
take  to  be  the  extent  of  the  immunity  guaranteed  by  the 
constitution  to  the  individual  against  the  government  in  those 
parts  of  the  United  States  subject  to  the  exclusive  jurisdic- 
tion of  the  general  government.  The  immunity  is  in  such 
parts,  therefore,  not  total,  as  in  the  commonwealths,  for  the 
simple  reason  that  in  the  commonwealths  the  law  of  slander 
and  libel  is  fixed  and  administered  by  the  commonwealths, 
while  in  these  other  places,  where  the  dual  system  of  govern- 
ment does  not  prevail,  the  general  government  must  fix  and 
administer  that  law. 

Second.  The  freedom  of  assembly  and  of  petitioning  the 
government  for  the  redress  of  grievances.  Here  again  the 
distinction  must  be  made  between  those  parts  of  the  United 
States  enjoying  the  dual  system  of  government,  viz ;  the 
commonwealths,  and  those  parts  subject  to  the  exclusive 
jurisdiction  and  authority  of  the  general  government. 


In  the  Constitution  of  the  United  States.        193 

Within  the  commonwealths  this  immunity  is  almost  total. 
The  general  government  can  exercise  no  powers  whatsoever 
in  regard  to  the  assembling  of  persons  within  a  common- 
wealth, unless  the  assembling  be  for  a  treasonable  purpose, 
simply  because  the  constitution  does  not  confer  upon  the 
government  any  such  powers  ;  and  the  principle  of  inter- 
pretation which  must  be  applied  in  determining  the  extent 
of  powers  possessed  by  the  general  government  within  the 
commonwealths  is  that  what  is  not  granted  by  the  constitu- 
tion is  denied,  —  is  reserved  either  to  the  commonwealths  or 
to  the  people.1 

On  the  other  hand,  the  grant  of  general  powers,  as  dis- 
tinguished from  enumerated  powers,  in  the  government  of 
those  parts  of  the  United  States  not  under  the  dual  or  federal 
form,  must  be  interpreted,  as  I  have  above  maintained,  upon 
the  principle  that  what  is  not  denied  is  accorded.  This 
principle  of  interpretation  would  allow  the  general  govern- 
ment to  limit  the  immunity  in  question,  as  to  such  parts,  by 
laws  distinguishing  between  a  peaceable  and  a  riotous  assem- 
bly, forbidding  the  latter  and  permitting  only  the  former.  In 
such  parts  the  immunity  against  the  general  government  is 
therefore  not  so  complete  as  in  the  commonwealths.  The 
reason  for  this  is  obviously  the  same  as  in  the  case  of  the 
freedom  of  speech  and  of  the  press.  From  whatever  place 
the  petition  may  come,  however,  the  duty  of  the  govern- 
ment to  receive,  and  hear  the  prayer  of  the  petition  is  the 
same. 

Third,  The  freedom  of  religion  and  zvorship.  Here  again 
the  same  distinction  is  to  be  made  between  those  parts  of 
the  United  States  in  which  the  federal  system  of  government 
prevails,  and  those  parts  subject  to  the  exclusive  authority  of 
the  general  government. 

In  the  former  this  immunity  is  total  against  the  general 

1  Constitution,  Amendments,  Art.  X ;  The  Collector  v.  Day,  U.  S.  Reports,  1 1 
Wallace,  113. 


194  Civil  Liberty 

government.  In  the  commonwealths  the  general  government 
has  no  power  whatsoever  to  touch  this  subject.  The  control 
of  the  same  is  assigned,  in  our  system,  exclusively  to  the 
commonwealths.  This  is,  therefore,  a  sphere  upon  which 
the  general  government  has  no  authority  to  intrude. 

On  the  other  hand,  in  those  parts  in  which  the  dual  system 
does  not  prevail,  the  central  government  has  general  powers 
in  regard  to  this  subject  as  to  all  other  subjects,  except  where 
these  powers  are  denied  to  it  by  the  constitution.  The  sole 
restriction  upon  the  power  of  the  general  government,  as  to 
this  subject,  is  contained  in  the  first  two  lines  of  the  first 
amendment  and  reads  :  "Congress  shall  make  no  law  respect- 
ing an  establishment  of  religion,  or  prohibiting  the  free  exer- 
cise thereof."  1  The  existence,  in  parts  of  the  United  States 
subject  to  the  exclusive  jurisdiction  of  the  general  govern- 
ment, of  a  system  of  worship  calling  itself  religion  and 
asserting  the  practice  of  polygamy  to  be  one  of  its  exercises, 
has  put  this  restriction  upon  the  power  of  that  government 
in  reference  to  this  subject  to  the  actual  test,  and  has  given 
us  an  authoritative  interpretation  of  the  restriction.  In  the 
great  case  of  Reynolds  v.  United  States,  the  constitutional 
immunity  of  the  individual  in  respect  to  the  freedom  of 
religion  and  worship  was  fixed  and  defined.2  The  court 
declared  that  by  this  constitutional  restriction  Congress  is 
deprived  of  legislative  power  over  opinion  merely,  but  is  left 
free  to  reach  actions  which  it  may  regard  as  violations  of 
social  duties  or  as  subversive  of  good  order.  The  free 
exercise  of  religion  secured  by  the  constitution  to  the  indi- 
vidual against  the  power  of  the  government  is,  therefore, 
confined  to  the  realm  of  purely  spiritual  worship ;  i.e.  to  rela- 
tions between  the  individual  and  an  extra-mundane  being. 

1  The  principle  of  the  constitution  which  denies  to  the  government  of  the 
United  States  the  power  to  make  a  religious  test  a  qualification  for  holding  office 
or  public  trust  (Art.  VI,  sec.  3)  creates  a  political  immunity  rather  than  one 
coming  under  the  category  of  individual  or  civil  liberty.  For  this  reason  I  do  not 
treat  of  it  in  this  connection.  a  98  U.  S.  Reports,  145. 


In  the  Constitution  of  the  United  States.        195 

So  soon  as  religion  seeks  to  regulate  relations  between  two  or 
more  individuals,  it  becomes  subject  to  the  powers  of  the 
government  and  to  the  supremacy  of  the  law  ;  i.e.  the  indi- 
vidual has  in  this  case  no  constitutional  immunity  against 
governmental  interference. 

II.  The  Immunities  in  respect  to  Private  Property.  The 
other  principal  avenue  of  approach  to  the  sphere  of  individ- 
ual autonomy  is  through  the  powers  of  taxation  and  of  emi- 
nent domain  necessarily  possessed  by  the  government.  Let 
us  now  examine  the  defenses  of  private  property  erected 
by  the  constitution  in  behalf  of  the  individual  against  the 
government. 

So  far  as  the  constitution  of  the  United  States  is  concerned, 
private  property  may  extend  to  everything  but  man.  Man 
alone  cannot  be  made  the  subject  of  property.1  The  general 
government  cannot,  therefore,  as  the  constitution  now  stands, 
narrow  the  sphere  of  private  property  within  those  parts  of 
the  United  States  enjoying  the  federal  system  of  government, 
i.e.  within  the  commonwealths,  by  declaring  anything,  except 
only  man,  not  a  proper  subject  of  private  property.  In  the 
parts  under  its  exclusive  jurisdiction,  the  case  is  different,  as 
I  have  already  repeatedly  explained.  In  these  parts  it  may 
determine  freely  in  what  private  property  shall  consist,  within 
the  single  limitation  that  it  cannot  make  man  a  subject  of 
property.  In  these  parts  the  constitution  creates  no  other 
immunity  for  the  individual  upon  this  point. 

But,  both  in  the  commonwealths  and  in  the  districts  and 
places  subject  to  the  exclusive  jurisdiction  of  the  general  gov- 
ernment, the  defenses  of  the  individual  created  by  the  consti- 
tution against  the  governmental  powers  of  taxation  and  emi- 
nent domain  are  the  same. 

1.  The  constitution  requires  that  all  bills  for  the  raising  of 
revenue  shall  originate  in  the  lower  house  of  the  Congress  ;a 

1  Constitution,  Amendments,  Art.  XIII. 
3  Art.  I,  sec.  7,  §  1. 


196  Civil  Liberty 

that  all  appropriations  of  money  shall  be  made  by  law ; 1  that 
private  property  shall  not  be  taken  for  public  use,  without 
just  compensation;2  and  that  no  one  shall  be  deprived  of 
property  without  clue  process  of  law.3  I  have  brought  here 
together  the  general  restrictions  upon  the  powers  of  the 
government,  and  after  briefly  explaining  them,  I  will  proceed 
to  the  more  specific  limitations. 

First.  The  vesting  of  the  power  to  originate  tax  levies 
exclusively  in  the  more  popular  branch  of  the  legislative 
department  of  the  government  is  not  a  defense  against  the 
whole  government,  and  therefore  is  not,  strictly  speaking,  an 
immunity.  Its  advantage  to  the  security  of  private  property 
springs  from  the  fact  that  the  people,  i.e.  the  suffrage-holders, 
have  a  more  direct  influence  over  this  branch  of  the  gov- 
ernment than  any  other,  rather  than  from  any  restriction 
imposed  by  the  constitution  upon  the  government  as  to  the 
extent  of  its  power  of  taxation.  The  real  immunity  is  to  be 
found  in  the  negative  side  of  this  provision,  viz;  that  the 
power  of  taxation  shall  not  be  exercised  at  all  in  any  other 
way  than  as  thus  prescribed.  The  House  of  Representa- 
tives itself  has  not  the  power,  either  by  separate  resolution 
or  by  joining  with  the  Senate  and  the  President  in  a  law  to 
that  effect,  to  permit  the  Senate,  or  any  other  branch  of  the 
government,  to  originate  a  bill  for  the  raising  of  revenue ; 
and  I  think  it  is  at  least  a  question  whether,  should  the 
Senate  or  the  President  undertake  to  assume  this  power  and 
the  House  acquiesce  in  the  usurpation,  the  individual  may 
not  defend  himself  in  the  courts  of  the  United  States  against 
the  collection  from  him  of  any  tax  so  levied,  on  the  ground 
of  its  unconstitutionality.  It  does  not  seem  to  me  that  the 
judicial  power  could  excuse  itself  from  taking  jurisdiction 
under  the  plea  that  this  is  a  political  question.  As  a 
general  principle,  the  distribution  of  powers  by  the  constitu- 

1  Art.  I,  sec.  9,  §  7.  2  Amendments,  Art.  V  3  Ibid. 


In  the  Constitution  of  the  United  States.        197 

tion  between  the  different  departments  of  the  government 
is  a  political  question ;  but  in  this  particular  instance  private 
property  would  be  directly  involved,  and  the  United  States 
courts  have  never  declined  jurisdiction  where  private  property 
was  immediately  affected,  on  the  ground  that  the  question 
was  political. 

Second.  The  constitutional  restriction  upon  the  power  of 
the  government  in  the  appropriation  of  money,  viz ;  that  it 
can  be  done  only  by  law,  i.e.  not  by  order  of  the  executive, 
creates  no  immediate  immunity  for  the  individual,  but  by 
preventing  waste  of  money  it  keeps  down  the  requirements 
of  the  treasury.  If,  however,  the  President  should  make 
appropriations  of  money,  and  the  treasurers  of  the  govern- 
ment funds  should  honor  his  orders,  there  is  no  way  provided 
by  the  constitution  whereby  an  individual  could  prevent  the 
same.  The  only  remedy  is  a  political  one,  viz  ;  impeachment 
of  the  President  and  the  treasurers  by  the  Congress.  If, 
again,  the  government  should  make  wasteful  appropriations 
by  law,  there  is  no  way  provided  by  the  constitution  whereby 
an  individual  could  prevent  the  same.  This  is  wholly  a  ques- 
tion of  policy,  and  in  our  system  the  Congress  is  the  final 
determiner  of  such  questions.1  This  provision  of  the  consti- 
tution creates,  then,  a  probable  defense  of  private  property, 
but  no  actual  immunity ;  and  I  have  referred  to  it  at  this  point 
simply  for  the  sake  of  giving  a  complete  resume  of  all  the 
defenses  of  private  property,  both  actual  and  possible,  under 
the  same  division. 

Third.  The  constitutional  restriction  upon  the  govern- 
ment's power  of  eminent  domain  is,  however,  a  real  immu- 
nity. The  government  may  not  take  any  property  from  the 
individual  for  public  use  without  rendering  just  compensation 
therefor,  and  the  government  must  always  follow  due  process 
of  law  in  depriving  the  individual  of  any  property. 

1  Georgia  v.  Stanton,  U.  S.  Reports,  6  Wallace,  p.  51. 


198  Civil  Liberty 

Due  process  of  law  in  exercising  the  right  of  eminent 
domain  means  that  the  expropriation  shall  be  for  a  public  pur- 
pose, and  shall  be  made  by  an  act  of  the  legislative  depart- 
ment of  the  government ;  that  this  act  shall  provide  a  fair 
and  just  means  of  determining  the  value  of  the  property  to 
be  taken,  giving  opportunity  for  the  owner  to  present  evi- 
dence and  be  heard  as  to  the  value,  and  shall  provide  a  just 
compensation  to  the  expropriated  owner.1 

The  due  process  of  law  for  the  taking  of  private  property 
by  the  government  in  any  other  manner  than  by  the  exercise 
of  the  power  of  eminent  domain  must  be  determined  by  look- 
ing, first,  to  "the  constitution  itself,"  and  second,  to  "those 
settled  usages  and  modes  of  proceeding  "  for  the  taking  of 
private  property  by  the  government  "  existing  in  the  com- 
mon and  statute  law  of  England  before  the  emigration  of  our 
ancestors,  and  which  are  shown  not  to  have  been  unsuited 
to  their  civil  and  political  condition  by  having  been  acted  on 
by  them  after  the  settlement  of  this  country."  2 

The  individual  is  protected  by  the  constitution  against  gov- 
ernmental encroachments  upon  his  private  property  through 
any  other  forms  of  procedure  than  those  above  described. 

2.  The  constitution  more  particularly  describes  the  due 
process  which  the  government  must  follow  in  the  exercise  of 
the  power  of  taxation. 

First.  The  government  cannot  levy  any  tax  upon  things 
exported  from  any  commonwealth  ;  i.e.  from  those  parts  of  the 
United  States  in  which  the  federal  system  of  government 
exists.3  The  court  has  defined  exports  to  be  articles  "actu- 
ally in  course  of  transportation  to  the  state  of  their  destina- 
tion, or  delivered  to  a  common  carrier  for  transportation."  4 

1  United  States  v.  Jones,  109  U.  S.  Reports,  513. 

2  Murray's  Lessee  v.  Hoboken  Land  &  Improvement  Co.,  U.  S.  Reports,  18 
Howard,  272. 

3  Constitution,  Art.  I,  sec.  9,  §  5. 

4  Coe  v.  Errol,  116  U.  S.  Reports,  517;  Turpin  v.  Burgess,  117  U.  S.  Re- 
ports, 504. 


In  the  Constitution  of  the  United  States.        1 99 

On  the  other  hand,  the  constitution  does  not  forbid  the 
government  to  tax  exports  from  those  parts  of  the  United 
States  which  are  subject  to  the  exclusive  jurisdiction  of  the 
general  government.  In  such  parts,  therefore,  this  immunity 
does  not  exist  for  the  individual. 

Second.  The  constitution  provides  that  no  direct  tax  shall 
be  levied  except  in  proportion  to  the  population.1  The  consti- 
tution declares  a  capitation  or  poll-tax  to  be  a  direct  tax,2  and 
the  Court  has  declared  that  a  tax  on  any  kind  of  property 
or  on  the  income  from  property  is  a  direct  tax.3 

Third.  The  constitution  provides  that  all  duties,  imposts 
and  excises  shall  be  uniform  throughout  the  United  States ; 
i.e.  looked  at  from  the  side  of  the  individual  immunity,  none 
can  be  levied  with  partiality  or  lack  of  uniformity.  The 
Court  has  defined  uniformity  in  taxation  to  be  its  operation 
"  with  the  same  force  and  effect  in  every  place  where  the  sub- 
ject of  it  is  found";4  i.e.  the  same  rate  of  taxation  upon  the 
same  article  wherever  found. 

Fourth.  Judicial  interpretation  of  the  general  spirit  and 
principles  of  the  constitution  has  declared  that  the  general 
government  cannot  tax  any  of  the  necessary  means  and 
instrumentalities  for  the  legitimate  governmental  acts  and 
operations  of  the  commonwealths.5  I  suppose,  therefore,  that 
the  property  of  individuals  in  any  such  necessary  means  and 
instrumentalities,  such,  for  example,  as  bonds  of  the  com- 
monwealths, is  shielded  from  the  tax-power  of  the  general 
government.6 

3 .  I  have  said  that  the  chief  means  possessed  by  the  govern- 
ment for  encroaching  upon  the  constitutional  domain  of  pri- 
vate property  are  the  powers  of  taxation  and  eminent  domain  ; 
but  these  are  not  the  exclusive  means.    The  government  might 

1  Constitution,  Art.  I,  sec.  9,  §  4.  2  Ibid. 

3  Pollock  v.  Farmers  Loan  and  Trust  Co.,  157  and  158  U.  S.  Reports,  pp.429, 
601.  4  Head  Money  Cases,  112  U.  S.  Reports,  5S0. 

5  The  Collector  v.  Day,  U.  S.  Reports,  n  Wallace,  113. 

6  This  is  now  so  held  in  Pollock  v.  The  Farmers  Loan  and  Trust  Co.,  157 
and  158  U.  S.  Reports,  pp.  429,  601. 


200  Civil  Liberty 

construct  by  legislation  a  system  of  judicial  procedure,  which 
would  greatly  expose  the  property  of  the  individual.  The 
constitution  creates  some  immunities  for  the  individual  against 
the  powers  of  the  government  in  this  respect. 

First.  It  prohibits  the  use  of  general  search-warrants  in  the 
seizure  of  property  by  the  officers  of  the  government,  in  that 
it  requires  that  all  warrants  shall  rest  upon  oath  or  affirmation 
and  shall  describe  particularly  the  place  to  be  searched  and 
the  things  to  be  seized ; 1  i.e.  the  individual  has  a  constitu- 
tional immunity  against  the  use  of  any  other  form  of  warrant 
by  the  government  in  the  searching  of  his  premises  and  the 
seizure  of  his  papers  and  effects. 

Second.  The  constitution  secures  to  the  individual,  in  suits 
prosecuted  in  the  courts  of  the  general  government  where 
the  value  in  controversy  exceeds  twenty  dollars,  an  immunity 
against  any  other  form  of  trial  than  the  trial  by  jury.2 

Third.  The  constitution  secures  to  the  individual  an  im- 
munity against  the  quartering  of  any  soldier  in  his  house  in 
time  of  peace  and  also,  except  in  a  manner  to  be  prescribed 
by  law,  in  time  of  war.3 

This  is,  in  outline,  the  domain  of  immunity  against  the 
powers  of  the  general  government  expressly  marked  out  for 
the  individual  by  the  constitution  and  expressly  guaranteed 
to  him  by  the  constitution.  It  must  be  added,  however,  that 
the  individual  is  impliedly  exempted  from  the  powers  of  that 
government  in  regard  to  all  subjects  not  brought  by  the 
constitution  within  the  realm  of  its  authority.  The  domain 
of  immunity  is  thus  increased  against  the  general  govern- 
ment so  as  to  correspond  with  the  whole  field  of  powers 
left  by  the  constitution  exclusively  to  the  commonwealths. 
Within  this  field  the  general  government  has  no  authority  to 
intrude  at  all,  nor  to  bring  the  individual  under  its  jurisdiction 
in  respect  to  subjects  contained  therein.     The  United  States 

1  Constitution,  Amendments,  Art.  IV.  3  Ibid.,  Art.  VII. 

3  Ibid.,  Art.  III. 


In  the  Constitution  of  the  United  States.       201 

judiciary  is  obligated  to  defend  the  individual  against  any  at- 
tack made  by  the  general  government  upon  this  sphere  of 
autonomy,  —  a  sphere  created  by  direct  implication  from  the 
general  principles  of  the  constitution. 

B.    The  Imm?inities  against  the  Commonwealths. 

The  sphere  of  individual  liberty  is,  in  a  federal  system  of 
government,  threatened  from  two  quarters,  viz ;  from  the 
central  government  and  from  the  commonwealths.  In  some 
respects  and  under  some  circumstances  the  danger  from  the 
latter  quarter  is  more  to  be  dreaded  than  from  the  former, 
and  therefore  more  to  be  guarded  against  by  the  constitution. 

Following  the  same  order  as  before,  I  will  treat  first  of 
personal  immunities,  and  then  of  immunities  in  respect  to 
property. 

I.    Personal  Immunities. 

1.  The  constitution  prescribes  that  "no  State"  (common- 
wealth) "shall  pass  any  bill  of  attainder  or  ex  post  facto  law."1 
The  word  "State  "  evidently  means  here  both  the  people  res- 
ident in,  and  the  legislature  of,  a  commonwealth.  The  lan- 
guage of  the  constitution  is  apparently  preventive,  but  the 
constitution  furnishes  the  general  government  with  no  means 
of  anticipating  any  such  acts  upon  the  part  of  the  common- 
wealths. These  bodies  may  therefore,  in  spite  of  this  prohi- 
bition, pass  such  acts,  and  the  general  government  cannot 
deal  with  them  until  some  person  has  been  aggrieved  by 
them  and  calls  upon  the  judicial  department  of  the  govern- 
ment for  defense.2  The  court  will  then  nullify  them  in  the 
particular  case  before  it ;  but  the  commonwealths  are  deterred 
from  continuing  to  execute  such  measures  in  other  cases  only 
by  the  knowledge  that  if  any  person  has  the  courage  and  the 
means  to  resist  them,  he  will  be  sustained  by  the  judicial 
department  of  the  general  government.  When  the  constitu- 
tional convention  of    1787  began   its  work  of  framing  the 

1  Constitution,  Art.  I,  sec.  10,  §  I. 

2  Cummings  v.  Missouri,  U.  S.  Reports,  4  Wallace,  277. 


202  Civil  Liberty 

present  constitution  of  the  United  States,  and  before  it  had 
been  compelled  to  compromise  its  first  conviction  and  judg- 
ment with  the  views  of  the  upholders  of  the  old  system,  it 
provided  efficient  means  for  the  execution  of  this  prohibition. 
The  Randolph  resolutions,1  the  Pinckney  draft2  and  the 
report  from  the  committee  of  the  whole  house  presented  by 
Mr.  Gorham  3  contain  the  provision  that  the  laws  enacted  by 
the  States,  i.e.  the  commonwealths,  shall  be  subject  to  veto 
by  the  legislature  of  the  United  States,  when,  in  the  opinion 
of  the  latter,  they  contravene  the  constitution  and  laws  of 
the  United  States.  Through  the  determined  opposition  of 
the  particularists,  this  practical,  though  rather  radical,  solu- 
tion of  this  knotty  question  was  stricken  out,  and  in  place  of 
it  we  have  the  plan  which  first  allows  the  mischief  to  happen, 
and  then  undertakes  to  cure  it  in  each  separate  case  by  a 
long  and  expensive  process.  I  have  already  explained  the 
meaning  of  these  terms,  bill  of  attainder  and  ex  post  facto 
law,  and  will  not  here  repeat  the  explanation. 

2.  The  constitution  provides  that  "neither  slavery  nor 
involuntary  servitude,  except  as  punishment  for  crime 
whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  in  any  place  subject  to  their 
jurisdiction."4  The  language  is  not  "in  anyplace  subject  to 
their"  exclusive  "jurisdiction,"  but  simply  "their  jurisdiction." 
The  constitution  then  empowers  Congress  to  enforce,  by 
appropriate  legislation,  this  provision  in  behalf  of  personal 
freedom  everywhere  within  the  United  States,  and  especially 
therefore,  from  the  nature  of  the  case,  against  attempts  to 
infringe  it  by  the  commonwealths,  or  by  persons  or  combina- 
tions of  persons  resident  within  the  commonwealths.  It  is, 
therefore,  a  constitutional  right  of  the  individual  to  call  upon 
the  government  of  the  United  States  to  defend  him  against 

1  Elliot's  Debates,  vol.  I,  p.  144. 

2  Ibid.,  p.  149.  zIbid.,  pp.  181,  182. 
4  Constitution,  Amendments,  Art  XIII. 


hi  the  Constitution  of  the  United  States.       203 

any  attempt,  from  any  quarter,  to  enslave  him  or  to  subject 
him  to  any  of  the  legal  incidents  of  slavery.  And  in  this 
case  he  may  be  protected  by  other  means  than  the  judicial. 
The  government  is  not  obliged  to  let  the  injury  happen  to 
the  individual  and  then  apply  a  remedy.  The  ninth  section 
of  the  Civil  Rights  Act  of  April  9,  1866,  which  provides  the 
means  and  measures  for  the  execution  of  this  mandate  of  the 
constitution,  declares,  "that  it  shall  be  lawful  for  the  Presi- 
dent of  the  United  States,  or  such  person  as  he  may  empower 
for  this  purpose,  to  employ  such  part  of  the  land  and  naval 
forces  of  the  United  States,  or  of  the  militia,  as  shall  be 
necessary  to  prevent  the  violation  and  enforce  the  due  execu- 
tion of  this  act."  * 

I  do  not  find  either  in  the  constitution,  the  laws  or  the 
judicial  decisions  any  direct  and  formal  definition  of  slavery 
or  of  involuntary  servitude.  The  language  of  the  constitu* 
tion  would,  I  think,  imply  that  they  are  not  intended  as 
co-extensive  terms  simply,  but  rather  as  cumulative  terms. 
I  infer  from  the  language  of  the  Civil  Rights  Act  of  1866, 
and  of  the  decision  in  the  Civil  Rights  Cases  in  1883,  that 
the  meaning  of  these  two  terms  is  :  that  no  involuntary  per- 
sonal servitude,  either  for  life  or  for  any  period  of  time,  nor 
any  of  the  civil  incidents  or  private  law  incidents  of  the  same, 
shall  be  allowed  to  exist  in  any  part  of  the  United  States,  or 
in  any  place  subject  to  the  jurisdiction  of  the  United  States.2 
It  will  be  noticed  that  I  employ  the  expression  "civil  inci- 
dents." I  do  this  in  order  to  distinguish  such  incidents  from 
political  incidents,  on  the  one  side,  and  from  social  incidents, 
on  the  other.  This  provision  of  the  constitution  does  not 
directly  confer  political  rights  upon  anybody,  though  it  is 
conceivable  that  it  might  do  so  indirectly ;  as,  for  example, 
if  some  other  clause  in  the  constitution  of  the  United  States, 

1  United  States  Statutes  at  Large,  vol.  14,  p.  29. 

2  United  States  Statutes  at  Large,  vol.  14,  p.  27;  Civil  Rights  Cases,  109  U.  S 
Reports,  3. 


204  Civil  Liberty 

or  some  provision  in  the  constitution  or  laws  of  a  common- 
wealth, should  declare  that  all  free  men  shall  have  the  right 
to  vote,  then  the  secondary  effect  of  the  execution  of  the 
thirteenth  amendment  would  be  to  confer  suffrage.  On  the 
other  hand,  the  social  incidents  of  involuntary  servitude  can- 
not be  regarded  as  legally  abolished  by  this  provision,  either 
directly  or  indirectly.  They  may  gradually  die  out  in  conse- 
quence of  the  abolition  of  the  civil  incidents,  but  this  process 
is  one  which  must  accomplish  itself  outside  of  the  realm  of 
law  and  in  the  domain  of  social  disposition.  It  is  indeed  con- 
ceivable that  law  may  be  so  expanded  as  to  dominate  the 
whole  intercourse  of  society  ;  but  this  provision  of  the  consti- 
tution does  not  authorize  the  legislature  of  the  United  States 
so  to  expand  the  laws  of  the  United  States  in  regard  to  this 
subject,  and  we  trust  that  the  legislatures  of  the  common- 
wealths will  not  enter  upon  any  such  tyrannic  course.  In 
the  Civil  Rights  Cases  above  cited,  the  Supreme  Court  of 
the  United  States,  the  ultimate  interpreter  of  the  constitu- 
tion in  our  system  in  regard  to  private  rights,  plainly  declares 
that  the  thirteenth  amendment  has  not  abolished  what  may 
be  termed  the  social  incidents  of  slavery.  These  cases  decide 
that  acts  of  discrimination  made  by  innkeepers,  theatre- 
managers,  and  carriers  of  passengers,  as  regards  the  accom- 
modations furnished  by  them  to  different  individuals,  do  not 
impose  upon  the  persons,  against  whom  such  discriminations 
may  be  made,  any  incident  of  slavery  or  involuntary  servitude 
within  the  meaning  of  the  provision  of  the  constitution  abol- 
ishing slavery  and  involuntary  servitude  ;  and  that  the  act  of 
Congress  of  March  i,  1875,  which  undertook  to  secure  to 
"all  persons  within  the  jurisdiction  of  the  United  States  the 
full  and  equal  enjoyment  of  the  accommodations,  advantages, 
facilities  and  privileges  of  inns,  public  conveyances  on  land 
or  water,  theatres  and  other  places  of  public  amusements, 
subject  only  to  the  conditions  and  limitations  established  by 
law  and  applicable  alike  to  citizens  of  every  race  and  color, 


In  the  Constitution  of  the  United  States.        205 

regardless  of  any  previous  condition  of  servitude,"  1  is  not 
warranted  by  the  constitution,  and  is,  therefore,  null  and 
void.2  Of  course,  then,  all  relations  more  distinctly  social 
than  these  mentioned  stand  still  more  completely,  if  possible, 
outside  of  the  pale  of  the  legal  operation  of  this  constitutional 
provision. 

The  Civil  Rights  Act  of  April  9,  1866,  indicates,  I  think, 
correctly  the  incidents  of  involuntary  servitude,  which  this 
thirteenth  article  of  the  amendments  to  the  constitution  abol- 
ishes. They  are  inequality  of  rights  in  the  making  and 
enforcing  of  contracts ;  in  suing ;  in  being  parties  and  giving 
evidence  in  a  suit ;  in  inheriting,  purchasing,  leasing,  selling, 
holding,  and  conveying  real  and  personal  property ;  in  the 
benefit  of  all  laws  and  proceedings  for  the  security  of  per- 
son and  property,  as  enjoyed  by  white  citizens  ;  and,  finally, 
the  suffering  of  more  grievous  pains,  penalties,  and  punish- 
ments than  those  inflicted  upon  white  persons  for  the  same 
offenses.3  The  Supreme  Court  evidently  approves  of  this 
view.4     It  is  undoubtedly  the  true  view. 

Two  avenues  of  approach  to  this  immunity,  as  thus  defined, 
are  still  open  to  the  commonwealths ;  two  means  of  infring- 
ing upon  the  same  still  exist,  which  may  be  easily  abused  by 
the  commonwealths.  The  first  is  the  law  of  apprenticeship, 
which,  in  our  system  of  federal  government,  is  a  subject  that 
comes  under  the  control  of  the  commonwealths.  The  general 
incidents  of  apprenticeship  are,  that  only  a  minor  may  be 
apprenticed ;  that  the  apprenticeship  shall  not  run  beyond 
the  date  of  the  attainment  of  majority ;  that  the  consent  of  the 
father,  mother  or  guardian  of  the  minor  shall  be  given  to  the 
apprenticeship  ;  that  the  minor  shall  enter  voluntarily  into  the 
same  or,  if  the  minor  be  a  pauper,  that  the  officers  of  the  poor 

1  United  States  Statutes  at  Large,  vol.  18,  part  3,  sec.  1,  p.  336. 

2  Civil  Rights  Cases,  109  U.  S.  Reports,  3. 

8  United  States  Statutes  at  Large,  vol.  14,  p.  27. 
4  109  U.  S.  Reports,  22. 


206  Civil  Liberty 

shall  execute  the  indenture  at  their  own  discretion  for  the 
minor ;  that  the  apprenticeship  shall  be  made  by  way  of  an 
unassignable  indenture  ;  and  that  the  master  shall  be  held  to 
provide  the  apprentice  with  reasonable  support,  proper  in- 
struction and  proper  care  in  case  of  sickness.1  This  law  may, 
however,  be  modified  at  will  by  the  legislature  of  each  com- 
monwealth in  our  system.  It  is  easy  to  see  how  a  species  of 
slavery  could  thus  be  introduced  under  its  cloak  by  the  legis- 
lature of  any  commonwealth  which  might  be  so  disposed.  If, 
for  example,  the  consent  of  the  person  to  be  bound  should  not 
be  required,  or  if  the  indenture  should  be  made  generally  as- 
signable, or  if  no  instruction  should  be  made  necessary,  so  that 
the  apprentice  should  grow  up  in  utter  ignorance  of  his  or  her 
rights,  there  would  certainly  result  an  involuntary  servitude. 
This  question  came  to  a  practical  test  very  soon  after  the 
passage  of  the  Civil  Rights  Act.  A  law  of  Maryland,  distin- 
guishing between  white  and  colored  apprentices,  by  allowing 
the  assignment  of  indentures  of  the  latter  to  any  one  within 
the  county  and  by  making  no  provision  for  the  education  of 
colored  apprentices,  was  reviewed  by  Chief  Justice  Chase  in 
the  case  of  Turner.2  The  Chief  Justice  pronounced  this  law 
to  be  one  creating  an  involuntary  servitude,  and  declared  it 
null  and  void,  as  contravening  the  thirteenth  amendment  to 
the  constitution  and  the  Civil  Rights  Act  of  the  Congress 
made  in  accordance  therewith. 

The  second  means  still  in  the  hands  of  the  commonwealths 
which  may  be  so  abused  as  to  produce  involuntary  servitude 
is  reserved  in  the  constitutional  provision  itself.  The  plain 
inference  to  be  drawn  from  the  words  "  except  as  a  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly  con- 
victed" is  :  that  the  commonwealths  may  still  establish  slavery 
and  involuntary  servitude  as  a  punishment  for  crime,  and  that 
the  individual  suffering  such  punishment  will  not  be  accorded 

1  Kent's  Commentaries,  vol.  II,  p.  262  ff. 

2  United  States  Circuit  Court  Reports,  1  Abbott,  84. 


In  the  Constitution  of  the  United  States.        207 

the  aid  of  the  general  government  to  deliver  him  from  the 
same.  Now,  in  our  federal  system  of  government,  the  legis- 
latures of  the  commonwealths,  unless  prevented  or  limited 
by  the  constitutions  of  the  commonwealths  respectively,  have 
plenary  power  to  define  crime  and  fix  the  penalties  of  crime. 
They  may  define  petty  offenses  as  grievous  crime,  and  punish 
the  same  with  life-servitude.  According  to  the  terms  of  this 
exception  in  the  constitutional  provision  under  consideration 
it  is  only  necessary  that  the  person  shall  have  been  duly  con- 
victed ;  i.e.  shall  have  been  convicted  by  due  process  of  law. 
If  that  shall  have  been  followed,  the  general  government  has 
no  further  power  of  intervention.  The  commonwealths  may 
thus  first  fill  their  prisons  with  convicts  sentenced  with  griev- 
ous punishments  for  the  commission  of  petty  offenses,  and 
then  deliver  these  convicts  over  to  individuals  to  be  held  in 
involuntary  personal  servitude  for  years  or  for  life,  by  assign- 
able indentures,  or  in  any  other  way  they  may  determine. 
This  is  not  mere  speculation.  Actual  procedures  in  certain 
commonwealths  have  come  very  nearly  up  to  what  I  have 
indicated  as  possibilities.  The  difficulty  lies  in  regarding 
criminal  law  as  local  law.  The  administration  of  the  criminal 
law  should  be  local,  but  the  fundamental  principles  of  the 
law,  the  definitions,  the  punishments,  and  the  fundamental 
rules  of  procedure  in  trial  and  conviction,  should  be  national. 
They  are,  in  their  nature,  national. 

3.  When  the  readmission  to  the  Congress  of  the  United 
States  of  members  from  the  reconstructed  commonwealths 
became  desirable  and  necessary,  the  party  which  had  secured 
the  abolition  of  slavery  was  obliged  to  consider  the  possibility 
of  its  opponents  regaining  a  majority  in  both  houses  of  the 
Congress  and  also  the  presidency.  As  yet  the  constitution 
expressed  the  gain  of  the  great  civil  war  only  in  the  two 
lines  abolishing  slavery  and  involuntary  servitude.  The  Civil 
Rights  Act  of  April  9th,  1866,  might  be  abolished  by  the 
vote  simply  of  a  hostile  majority  in  the  Congress  with  the 


208  Civil  Liberty 

consent  of  a  hostile  President.  It  appeared  wise,  therefore, 
to  elaborate  the  principles  of  the  thirteenth  amendment  a 
little  further  in  the  constitution  itself,  and  give  the  newly- 
emancipated  the  status  of  citizenship  by  the  constitution. 
Two  advantages  would  thus  be  gained.  First,  the  Congress 
could  not  by  legislation  abolish  the  constitutional  provisions ; 
and,  second,  if  the  Congress  should  fail  to  enact  the  proper 
measures  for  executing  them,  they  would  be  so  nearly  com- 
plete and  self-executing  that  the  judiciary  might  be  able  to 
apply  them  to  each  individual  case.  These  were  the  reasons 
which  led  to  the  adoption  of  the  fourteenth  amendment,  so 
far,  at  least,  as  the  question  of  individual  or  civil  liberty  is 
concerned.  Subsequent  events  have  shown  the  wisdom  of 
the  precaution,  and  have  also  demonstrated,  in  large  degree, 
the  shortsightedness  of  the  wisest. 

The  first  section  of  the  fourteenth  amendment  contains  all 
that  there  is  upon  the  subject  of  civil  liberty  in  the  entire 
article.  It  defines,  first,  the  qualifications  of  citizenship ; 
second,  it  declares  certain  rights  of  citizenship ;  and  third,  it 
declares  certain  rights  of  persons.  As  the  last  concept  is  the 
wider,  I  will  deal  with  it  first. 

First.  The  amendment  ordains  that  no  "  State  "  (common- 
wealth) "  shall  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws."  x  If  any  com- 
monwealth should  undertake  to  do  any  of  these  things,  the 
injured  individual  may  call  the  government  of  the  United 
States  to  his  defense  by  means  of  judicial  decision  and  its 
execution.  It  is  true  that  had  Congress  passed  no  laws  to 
enforce  this  provision,  (as  it  is  empowered  to  do  by  the  fifth 
section  of  the  amendment,)  there  might  be  room  for  argument 
that  the  provision  is  only  declaratory  of  the  moral  duty  of 
the  commonwealth,2  and  if  this  view  had  prevailed  the  most 

1  Constitution,  Amendments,  Art.  XIV,  sec.  I. 

2  Ex  parte  Virginia,  ioo  U.  S.  Reports,  339. 


In  the  Constitution  of  the  United  States.        209 

that  the  Court  could  have  done  would  have  been  to  free 
the  individual  from  the  force  of  the  commonwealth,  —  it 
could  not  have  forced  the  commonwealth  in  his  behalf.  It  is 
also  true  that  the  Congress  might  provide  other  instrumen- 
talities than  the  courts  for  the  vindication  of  the  individual 
immunities  here  established.  We  have  seen  that  the  Con- 
gress did  do  so  in  regard  to  the  execution  of  the  thirteenth 
amendment. 

The  Congress  has  enacted  laws  in  enforcement  of  this  pro- 
vision ; 1  but  it  is  extremely  doubtful  whether  it  has  created 
any  other  means  of  meeting  the  hostile  acts  of  the  common- 
wealths than  the  judicial.  In  section  thirteenth  of  the  first 
of  these  acts,  viz;  that  of  May  31,  1870,  it  is  provided  "that 
it  shall  be  lawful  for  the  President  of  the  United  States  to 
employ  such  part  of  the  land  or  naval  forces  of  the  United 
States  or  of  the  militia  as  shall  be  necessary  to  aid  in  the 
execution  of  judicial  process  issued  under  this  act."  This  is 
certainly  only  declaratory  of  the  constitutional  power  of  the 
President  in  such  a  case,  and  does  not  create  any  new  power 
for  the  President.  The  same  act  also  re-enacts  the  Civil 
Rights  Act  of  April  9th,  1866,  (which,  as  I  have  pointed  out, 
does  contain  other  means  of  enforcement  than  the  judicial,) 
and  in  the  re-enacting  clause  the  act  of  1870  provides  that  its 
sixteenth  and  seventeenth  sections  shall  be  enforced  according 
to  the  provisions  of  the  measure  of  1866.2  These  sections  of 
the  act  of  1870  are  but  little  more  than  a  repetition  of  the  first 
and  second  sections  of  the  act  of  1866.  The  act  of  1875 
provides  no  other  means  than  the  judicial  for  its  enforcement. 

The  supreme  judicial  power  has  interpreted  the  meaning  of 
those  terms  employed  in  this  clause  of  the  constitutional  pro- 
vision upon  which  all  the  important  issues  under  the  same 


1  United   States  Statutes   at  Large,  vol.  16,  140;    United   States  Statutes  at 
Large,  vol.  18,  part  3,  336. 

2  United  States  Statutes  at  Large,  vol.  16,  144,  sec.  18. 


210  Civil  Liberty 

turn.  In  the  case  of  Ex  parte  Virginia,1  the  Court  held  that 
the  word  "  state "  (commonwealth)  signifies  any  of  the  offi- 
cers or  agents  by  whom  the  powers  of  the  commonwealth  are 
exerted.  The  exact  language  of  the  Court  is  "  that  whoever, 
by  virtue  of  public  position  under  a  State  "  (commonwealth) 
"government,  deprives  another  of  property,  life,  or  liberty, 
without  due  process  of  law,  or  denies  or  takes  away  the  equal 
protection  of  the  laws,  violates  the  constitutional  inhibition; 
and  as  he  acts  in  the  name  of  and  for  the  State  "  (common- 
wealth), "and  is  clothed  with  the  State's"  (commonwealth's) 
"power,  his  act  is  that  of  the  State  "  (commonwealth).  "This 
must  be  so  or  the  constitutional  prohibition  has  no  meaning. 
Then  the  State"  (commonwealth)  "has  clothed  one  of  its 
agents  with  the  power  to  annul  or  to  evade  it."  That  is  to  say, 
a  commonwealth  cannot  avoid  the  interference  of  the  general 
government  in  behalf  of  an  individual,  whose  immunity  under 
this  provision  of  the  constitution  shall  have  been  infringed 
by  some  agent  or  officer  of  the  commonwealth,  upon  the  plea 
that  that  agent  or  officer  has  acted  ultra  vires.  The  Court 
will  not  go  into  that  question.  It  is  enough  that  the  common- 
wealth has  clothed  its  agent  with  official  power,  and  that 
he,  by  means  of  it,  has  infringed  the  immunity  of  the  in- 
dividual established  by  this  constitutional  provision.  The 
later  case  of  Arrowsmith  v.  Harmoning2  seems  to  modify 
this  doctrine  somewhat,  in  that  it  declares  a  commonwealth 
guiltless  of  a  violation  of  "due  process  of  law"  when  one  of 
its  courts  renders  an  erroneous  decision  under  a  common- 
wealth statute,  which  statute,  if  correctly  interpreted,  would 
furnish  the  parties  with  the  necessary  constitutional  protec- 
tion. The  rule  would  thus  seem  to  be  that  when  a  common- 
wealth clothes  an  officer  with  discretionary  power,  and  he,  in 
the  exercise  of  such  power,  violates  due  process  of  law,  then 
the  commonwealth  itself  is  guilty.     Of  course  it  is  guilty  if 

1  ioo  U.  S.  Reports,  339.  a  1 18  U.  S.  Reports,  194. 


In  the  Constitution  of  the  United  States.       2 1 1 

a  legislative  enactment  violates  due  process.  I  shall  treat  of 
this  point  a  little  more  fully  further  on. 

In  the  case  of  Yick  Wo  v.  Hopkins,1  the  Court  defines  the 
word  "person"  to  be  any  human  being,  whether  citizen  or 
alien,  without  regard  to  race,  color  or  nationality ;  and  in  the 
case  of  the  Pembina  Mining  Co.  v.  Pennsylvania,2  it  places 
under  the  term  persons  also  private  corporations  legally  exist- 
ing within  the  commonwealth.  It  is  the  widest  possible  term 
of  private  law  for  designating  parties  who  may  be  affected 
by  any  governmental  act  or  the  act  of  any  governmental 
agent  or  official. 

The  words  "life,"  and  "liberty,"  refer  to  physical  freedom 
from  violence  and  restraint,  inflicted  or  imposed  by  govern- 
ment or  the  agents  or  officials  thereof.  The  first  of  these 
words  is  self-defining,  and  the  second  has  been  denned  in  the 
discussion  of  the  terms  slavery  and  involuntary  servitude. 
The  meaning  of  the  word  "property"  will  be  considered 
under  division  II. 

The  phrase,  "due  process  of  law,"  which  we  here,  for  the 
first  time,  find  directed  against  the  commonwealths  occurs, 
as  we  know,  in  another  part  of  the  constitution  as  descriptive 
of  an  immunity  of  the  individual  against  the  general  govern- 
ment. In  that  case  we  know  from  the  constitution  itself 
exactly  what  it  means  :  viz ;  the  special  warrant  for  arrest ; 
the  privilege  of  habeas  corpus  and  of  bail ;  indictment  by 
grand  jury  ;  trial  by  petty  jury  in  open  court ;  full  knowledge 
of  the  subject  of  the  accusation ;  opportunity  to  confront 
witnesses  supporting  the  accusation ;  power  to  compel  the 
attendance  of  witnesses  rebutting  the  accusation,  etc.  The 
question  here  is :  does  the  phrase  have  the  same  significance 
when  directed  against  the  commonwealths  ?  The  first  general 
definition  given  to  it  by  the  Supreme  Court  when  aimed  at 
the  commonwealths  is  to  be  found  in  the  case  of  Pennoyer  v. 

»  118  U.  S.  Reports,  356.  *  125  U.  S.  Reports,  181. 


212  Civil  Liberty 

Neff.1  The  exact  words  of  the  Court  are  that  due  process  of 
law,  as  required  by  the  fourteenth  amendment,  means,  when 
applied  to  judicial  proceedings,  "a  course  of  legal  proceedings 
according  to  those  rules  and  principles  which  have  been 
established  in  our  systems  of  jurisprudence  for  the  protection 
and  enforcement  of  private  rights."  We  should  not  be  able 
to  determine  from  this  definition  whether  all  the  specifica- 
tions of  due  process  contained  in  the  immunity  against  the 
general  government  were  also  requisite  in  the  proceedings 
of  the  commonwealth  courts  ;  but  the  Supreme  Court  of  the 
United  States  has  at  last  cleared  up  this  question  definitely 
in  the  case  of  Hurtado  v.  California,2  by  deciding  that  due 
process  of  law,  as  required  of  the  commonwealths  by  the 
constitution  does  not  prevent  a  commonwealth  from  author- 
izing its  courts  to  prosecute  for  crime  by  information ;  i.e. 
to  prosecute  without  the  intervention  of  the  grand  jury. 
Due  process  of  law  as  directed  against  the  commonwealths 
is,  then,  not  to  be  considered  as  defined  at  all  in  the  con- 
stitution of  the  United  States  or  in  the  laws  of  the  United 
States  made  in  accordance  therewith,  but  as  defined  in  the 
constitution,  laws  and  customs  of  the  commonwealths,  sub- 
ject, however,  to  review  in  each  case  by  the  courts  of  the 
United  States.  It  will  be,  therefore,  as  defensive  of  individ- 
ual liberty  as  the  disposition  of  those  courts,  acting  with  full 
discretion,  may  choose  to  make  it.  This  is  an  immense 
power,  and  the  hands  into  which  it  is  entrusted  should  be 
selected  with  the  most  scrupulous  care.  No  narrow  spirit 
can  be  endured  in  such  a  position.  Civil  liberty  is  in  its 
nature,  at  the  narrowest,  national,  and  manifests,  with  the 
widening  of  political  organization,  the  tendency  to  become 
human.  The  local  control  of  this  subject  must  be  placed 
under  strongest  limitations  if  we  would  hold  our  public  law 
up  to  the  demands  of  our  political  science,  i.e.  of  our  true 
political  conditions. 

1  95  U.  S.  Reports,  714.  2  1 10  U.  S.  Reports,  516. 


In  the  Constitution  of  the  United  States.       2 1 3 

Again,  the  supreme  judicial  power  has  decided,  in  the  case 
of  Barbier  v.  Connolly,1  that  the  fourteenth  amendment  was 
not  designed  to  interfere  with  the  police  power  of  the  com- 
monwealths. This  opens  a  very  wide  field  of  discussion.  What 
is  the  police  power  ?  Who  is  authorized  to  fix  its  final  limita- 
tions ?  Who  is  to  decide  how  far  it  shall  be  permitted  to 
infringe  individual  rights  before  the  defense  of  "  due  process 
of  law"  can  be  successfully  invoked  against  it  ?  I  can  find  no 
satisfactory  definition  of  this  phrase,  "police  power,"  in  the 
decisions  of  the  Supreme  Court  itself.  The  earlier  decisions 
make  it  identical  with  the  whole  internal  government  of  the 
commonwealth.  In  the  case  of  the  City  of  New  York  v. 
Miln2  the  Court  declared,  "we  should  say  that  every  law 
came  within  this  description  which  concerned  the  welfare  of 
the  whole  people  of  a  State"  (commonwealth),  "or  any  indi- 
vidual within  it,  whether  it  related  to  their  rights  or  their 
duties  ;  whether  it  respected  them  as  men,  or  as  citizens  of 
the  State"  (commonwealth);  "whether  in  their  public  or 
private  relations  ;  whether  it  related  to  the  rights  of  persons, 
or  of  property,  of  the  whole  people  of  a  State "  (common- 
wealth) "  or  of  any  individual  within  it,  and  whose  operation 
was  within  the  territorial  limits  of  the  State "  (common- 
wealth), "and  upon  the  persons  and  things  within  its  jurisdic- 
tion." The  recent  case  of  Barbier  v.  Connolly,  cited  above, 
does  not  evince  very  great  advance  in  the  analysis  of  this  sub- 
ject. The  Court,  in  this  case,  defines  the  police  power  of  the 
commonwealth  to  be  its  power  "  to  prescribe  regulations  to 
promote  the  health,  peace,  morals,  education,  and  good  order 
of  the  people,  and  to  legislate  so  as  to  increase  the  industries 
of  the  State"  (commonwealth),  "develop  its  resources,  and 
add  to  its  wealth  and  prosperity."  The  distinction  between 
the  two  definitions  consists  in  this  :  that  while  the  former 
identifies  the  police  power  with  the  whole  power  of  internal 

1  113  U.  S.  Reports,  27. 

2  U.  S.  Reports,  1 1  Peters,  102. 


214  Civil  Liberty 

government,  the  latter  excepts  from  its  domain  the  power  to 
fix  and  administer  the  law  of  private  rights.  The  latter  dis- 
tinguishes the  whole  power  of  internal  government  into  two 
parts,  viz  ;  the  jural  and  the  police.  Under  the  jural  power 
it  would  place  the  development  and  administration  of  the 
common  law,  or,  better,  of  private  law.  Under  the  police 
power  it  would  place  everything  else.  This  is  certainly  some 
advance  in  thought  upon  the  subject.  It  is  the  conclusion  to 
which  one  of  Europe's  greatest  publicists  has  arrived.1  The 
scientific  thought  of  the  day  has,  however,  gone  much  beyond 
this.  It  makes  many  further  distinctions,  which,  however, 
cannot  be  clearly  understood  except  by  following  briefly  the 
historical  development  of  the  conception  of  the  police  power. 
The  etymology  of  the  word  is  Greek,  Trokneia.  In  its 
Greek  home  it  was  the  term  which  designated  the  whole 
internal  government  of  the  state  as  distinguished  from  its 
foreign  relations.  It  came  into  the  political  science  of  mod- 
ern Europe  at  the  epoch  when  the  absolute  monarchy  was 
slowly  developing  its  powers  out  of  the  regalia  of  the  feudal 
monarchy.  The  revival  of  Greek  and  Latin  learning  was  one 
of  the  chief  forces  contributing  to  this  development,  in  that 
it  furnished  the  contrast  of  a  brilliant  and  powerful  civiliza- 
tion, produced  largely  by  the  consolidation  of  governmental 
power,  over  against  the  dissolution,  anarchy  and  poverty  of 
the  middle  ages  and  the  feudal  system.  The  royal  power 
began  to  expand  its  authority  and  activity  beyond  the  limits 
of  the  royal  regalia,  or  prerogatives  recognized  in  the  feudal 
compacts,  and  to  interfere  in  the  local  affairs  of  the  manors, 
bishoprics,  abbeys  and  free  cities  in  behalf  of  the  individual 
subject.  The  struggle  was  long  and  bitter,  but  the  crown 
was  in  favor  with  the  masses,  who,  as  tenants  of  manors 
and  religious  corporations,  or  as  servants  of  city  guilds, 
had   had    enough   of  petty  tyranny.      The   result   was   the 

1  Robert  v.  Mohl,  Die  Polizei-Wissenschaft,  I.  Bd.  SS.  5,  6.     Dritte  Auflage. 


In  the  Constitution  of  the  United  States.        2 1 5 

assumption  by  the  crown  of  all  governmental  powers  within 
the  localities,  and  the  administration  of  them  through  its 
own  appointed  agents.  Under  the  conditions  of  the  age, 
viz ;  hatred  of  the  petty  lord  by  the  common  man,  and  yet 
no  capacity  in  the  mass  of  the  people  to  assume  sovereignty 
and  organize  government,  the  principle  was  rapidly  devel- 
oped by  the  civilians  about  the  throne  that  the  King  knew 
best  what  would  promote  the  security  and  welfare  of  the  peo- 
ple, and  that  to  him  belonged  the  duty  and  the  power  to 
invent  and  apply,  at  his  discretion,  the  means  for  the  attain- 
ment of  the  same  ;  i.e.  the  police  power  of  the  crown  became 
absolute  and  identical  with  what  we  now  term  the  sphere  of 
internal  government.  Among  the  states  of  western  Europe, 
this  development  was  most  thorough-going  in  France  and 
Germany,  especially  in  France,  under  whose  Grand  Monarch 
it  reached  a  degree  of  absoluteness,  which  sacrificed  the  indi- 
vidual to  the  government ;  i.e.  the  King's  government  became 
despotic.  This  result  of  the  development  produced  the  Revo- 
lution, the  main  purpose  of  which  was  to  win  for  the  individual 
man  the  constitutional  power  of  seeking,  in  some  degree,  his 
own  welfare  in  his  own  way ;  and  to  secure  the  constitutional 
recognition  to  him  of  the  domain  of  free  action  necessary 
for  the  attainment  of  the  same. 

With  this  new  thought  and  purpose,  the  political  science 
of  the  present  century  has  resurveyed  the  field  of  the  police 
power,  and  has  brought  out  four  very  fundamental  distinc- 
tions in  regard  to  it.  The  first  is,  that  the  police  power  is, 
in  its  nature,  administrative,  not  legislative  nor  judicial;  the 
second  is,  that  it  is  not  co-extensive  with  the  whole  scope 
of  internal  administration,  as  distinguished  from  external, 
but  is  only  a  branch  of  internal  administration  ;  the  third 
is,  that,  in  the  exercise  of  the  police  functions,  the  executive 
discretion  should  move  within  the  lines  of  general  principles 
prescribed  either  by  the  constitution  or  the  legislature ;  and 
the  fourth  is,  that  the  community  in  its  most  local  organiza- 


216  Civil  Liberty 

tion  should  participate,  so  far  as  possible,  in  the  exercise  of 
the  police  power.  The  purpose  of  these  distinctions  is  to 
secure  the  individual  against  the  tyranny  of  the  government 
and,  at  the  same  time,  to  secure  the  public  welfare  against 
the  selfishness  of  the  individual ;  and  the  function  which  they 
assign  to  the  police  power,  in  so  far  as  it  is  directed  against 
the  actions  of  men  as  distinguished  from  the  processes  of 
nature,  is  that  of  restraining  the  individual  in  the  exercise 
of  his  rights  when  exaggerated  by  him  to  the  point  of  becom- 
ing a  danger  to  the  community.  Every  right  acknowledged 
to  the  individual  by  the  state  may  be  abused  by  him  to  the 
detriment  of  the  state.  The  state  must  therefore  confer 
upon  the  government  the  power  to  watch  for  and  prevent 
such  abuse.  This  is  the  police  power.  Its  realm  is,  therefore, 
the  counterpart  of  the  realm  of  individual  liberty.  It  is 
the  guard  which  the  state  sets  upon  the  abuse  of  individual 
liberty.  It  does  not  prescribe  the  method  according  to  which 
that  liberty  may  be  enjoyed,  but  it  fixes  the  point  past  which 
it  may  not  be  pursued,  and  contains  summary  governmental 
authority  for  preventing  its  abuse.1 

The  narrowing  of  the  sphere  of  the  police  power  is  thus 
seen  to  be  the  general  trend  of  the  history  of  the  theory  of 
that  power.  I  do  not  see  how  it  can  now  be  further  narrowed 
without  danger  to  public  security.  But  the  Supreme  Court 
has  not  yet  brought  its  definitions  to  the  standard  of  the  lat- 
est formulation  of  the  theory.  It  gives,  in  its  practice,  a  much 
wider  range  to  the  police  power  of  the  commonwealths  than 
the  latest  thought  upon  the  subject  warrants.  Its  theory  of 
the  extent  of  the  police  power  is,  in  the  political  science  of 
to-day,  obsolete.  The  practice  of  the  Court,  however,  war- 
rants us  in  holding  it  to  be  the  doctrine  of  our  public  law 
that  the  constitutions  and  laws  of  the  commonwealths  fix,  in 
first  instance,  the  domain  of  the  police  power  of  the  respec- 

1  L.  von  Stein,  Verwaltungslehre,  S.  186  ff. 


In  the  Constitution  of  the  United  States.        2 1 7 

tive  commonwealths ;  but  that  these  constitutions  and  laws 
are  subject  to  revision,  in  any  case  of  their  application,  by  the 
United  States  judiciary,  upon  appeal  made  thereto  by  any 
individual  under  the  plea  that  "due  process  of  law"  has  not 
been  observed  in  the  deprivation  inflicted  upon  him  by  the 
act  of  the  commonwealth.  This  is  again  an  immense  power 
in  the  hands  of  the  general  judiciary.  It  is  proper  that  it 
should  be  so  placed  ;  but  in  its  exercise,  again,  no  narrow  spirit 
can  be  endured.  The  largest  wisdom,  the  broadest  patriotism 
and  the  most  exalted  humanity  are  the  qualities  of  character 
absolutely  necessary  to  the  personnel  of  a  body  vested  with 
such  a  power. 

Lastly,  the  phrase  "  equal  protection  "  of  the  laws  has  been 
defined  by  the  Court  to  mean  exemption  from  legal  discrimi- 
nations on  account  of  race  or  color.1  This  provision  would 
probably,  therefore,  not  be  held  to  cover  discriminations  in 
legal  standing  made  for  other  reasons ;  as,  for  example,  on 
account  of  age  or  sex,  or  mental,  or  even  property,  qualifi- 
cations. The  Court  distinctly  affirms  that  the  history  of 
the  provision  shows  it  to  have  been  made  to  meet  only 
the  unnatural  discriminations  springing  from  race  and  color. 
If  a  discrimination  should  arise  from  any  previous  condition 
of  servitude,  I  think  the  Court  would  regard  this  as  falling 
under  the  inhibition.  The  language  of  the  decision  implies 
this  certainly,  if  it  does  not  exactly  express  it. 

The  Court  has  been  generous  in  the  application  of  the 
principle  of  its  definition  to  the  details  of  practice.  It  has 
declared,  under  the  direct  issue,  that  where  the  custom  exists 
of  a  participation  of  the  community  in  the  administration  of 
justice,  i.e.  where  the  custom  of  trial  by  jury  exists,  the  exclu- 
sion of  persons  from  the  jury  service  on  account  of  race  or 
color  or  previous  condition  of  servitude  falls  within  the  con- 
stitutional inhibition.2     It  seems  to  me  that  the  reasoning 

1  Strauder  v.  West  Virginia,  ioo  U.  S.  Reports,  303.  a  Und. 


218  Civil  Liberty 

of  this  case  would  prohibit  a  commonwealth  from  making 
race,  color  or  previous  condition  of  servitude  a  disqualifica- 
tion for  holding  judicial  office.  The  decision  of  the  Court 
seems  to  me  to  cover  all  discriminations  in  legal  status  or 
in  the  administration  of  justice  arising  from  race,  color  or 
previous  condition  of  servitude,  and  to  interpret  the  consti- 
tutional provision  as  conferring  upon  the  individual  the  power 
to  invoke  the  interference  of  the  judicial  department  of  the 
general  government  against  any  attempts  made  upon  his  lib- 
erty by  the  commonwealths  with  this  purpose. 

Second.  The  constitutional  provision  under  consideration  or- 
dains that  "  no  State  "  (commonwealth)  "shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States."1  It  will  be  observed  at  the 
outset  that  the  language  of  this  part  of  the  provision  differs 
somewhat  from  that  employed  in  the  part  which  we  have  just 
reviewed.  It  does  not  read,  "no  State"  (commonwealth)  "shall 
abridge  the  privileges  and  immunities,"  etc.,  as  it  would  if  it 
followed  the  language  of  the  clause  just  referred  to,  but  "no 
State  "  (commonwealth)  "  shall  make  or  enforce  any  law  which 
shall  abridge,"  etc.  ;  and  it  does  not  read,  "no  State"  (common- 
wealth) "  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  and  immunities  of  any  person,  as  established 
by  the  constitution  and  laws  of  the  United  States,"  but,  "the 
privileges  and  immunities  of  any  citizen  of  the  United  States." 

What  do  these  differences  of  expression  signify  ?  Who 
are  citizens  of  the  United  States  as  distinguished  from  per- 
sons within  the  jurisdiction  of  the  United  States  ?  Against 
what  organization  or  power  or  procedure  of  the  common- 
wealths is  the  right  of  the  citizen  of  the  United  States 
protected  ?  And  what  are  the  privileges  and  immunities  of 
citizens  of  the  United  States  ? 

The  constitution  itself  declares  that  "  all  persons  born  or 

1  Constitution,  Amendments,  Art.  XIV,  sec.  I. 


In  the  Constitution  of  the  United  States.       219 

naturalized  in  the  United  States,  and  subject  to  the  jurisdic- 
tion thereof,  are  citizens  of  the  United  States  and  of  the 
State  "  (commonwealth)  "wherein  they  reside."  1  Before  the 
adoption  of  the  fourteenth  amendment  the  constitution  con- 
tained no  definition  of  citizenship,  either  of  the  United  States 
or  of  a  commonwealth.  It  referred  to  a  citizenship  of  the 
United  States  as  a  qualification  for  membership  in  the  two 
houses  of  Congress  and  for  the  presidential  office,  but  it  did 
not  declare  what  should  constitute  such  citizenship.  Before 
the  adoption  of  this  amendment  the  leaders  of  the  states- 
rights  party  held  that  citizenship  of  the  United  States  was 
but  the  consequence  of  citizenship  in  some  State  (common- 
wealth).2 Finally,  before  the  adoption  of  this  amendment, 
the  Supreme  Court  itself  indicated  that  it  was  inclining  to 
the  same  view  in  the  famous  decision  which  declared  that  a 
man  of  African  descent  could  not  be  a  citizen  of  a  State 
(commonwealth)  or  of  the  United  States ;  i.e.  that  the  United 
States  government  had  not  the  power  to  make  him  so.3 

This  amendment,  therefore,  reverses  the  previously  estab- 
lished principle.  According  to  it,  citizenship  is  primarily  of 
the  United  States  ;  and  secondarily  and  consequently,  of  the 
locality  in  which  the  citizen  of  the  United  States  may  reside. 
Citizenship,  both  of  the  United  States  and  of  the  common- 
wealths, is  thus  conferred  by  the  constitution  of  the  United 
States  and  the  laws  of  Congress  made  in  accordance  there- 
with. The  commonwealths  can  neither  confer  nor  withhold 
citizenship.4  A  citizen  of  the  United  States  is  now,  ipso 
jure,  a  citizen  of  the  commonwealth  in  which  he  may 
fix  his  residence  ;  and  if  any  commonwealth  should  under- 
take to  defeat  the  spirit  of  this  provision  by  the  enact- 
ment of  hostile  laws  in  regard  to  the  gaining  of  residence 
within    its    limits,    any    individual    suffering    injury    from 

1  Constitution,  Amendments,  Art.  XIV,  sec.  i. 

2  Calhoun's  Works,  vol.  II,  p.  242. 

8  Dred  Scott  v.  Sanford,  U.  S.  Reports,  19  Howard,  393. 
4  Minneapolis  v.  Raum,  U.  S.  C.  C.  of  Appeals  XII,  448. 


2  2  o  Civil  L  iberty 

the  same  may  invoke  the  interpretation  of  the  term  residence 
by  the  United  States  judiciary,  and  the  aid  of  the  general 
government  in  the  protection  of  his  liberty  under  that  in- 
terpretation. There  is  nothing  in  this  provision,  indeed, 
which  would  prevent  a  commonwealth  from  permitting  an 
alien  to  exercise  the  privileges  of  a  citizen  within  the  com- 
monwealth so  far  as  that  particular  commonwealth  is  con- 
cerned. The  provision  was  meant  to  enlarge  the  enjoyment 
of  these  privileges,  not  to  contract  them.  It  is  easy  to  see, 
however,  that  a  commonwealth  may  abuse  this  power  to  the 
detriment  of  the  whole  people  of  the  United  States.  For 
example,  a  commonwealth  might  permit  aliens  to  hold  real 
estate  in  such  quantities  and  under  such  tenures  as  to  intro- 
duce a  very  disturbing  element  into  our  general  system  of 
ownership  of  land.  I  will  say  nothing  at  this  point  concern- 
ing the  possible,  nay,  actual,  abuse  of  this  power  by  the  com- 
monwealths in  permitting  aliens  to  exercise  the  suffrage, 
since  the  suffrage  cannot  be  classed  among  the  civil  or  pri- 
vate rights. 

I  think  a  great  deal  of  the  confusion  of  thought  which 
prevails  in  reference  to  this  subject,  wherever  a  federal  sys- 
tem of  government  exists,  is  occasioned  by  the  failure  to  dis- 
tinguish between  the  state  and  the  two  governments.  The 
individual  is  not  a  citizen  of  either  government,  but  of  the 
state  back  of  both.  He  derives  his  citizenship,  with  all  its 
immunities  and  rights,  from  the  state  ;  and  the  two  govern- 
ments have  only  the  duty  and  the  power  of  observing  and 
protecting  those  immunities  and  rights,  each  in  the  sphere 
assigned  to  it  by  the  state.  I  will  endeavor  to  expand  this 
view  still  further  when  I  come  to  inquire  what  are  "  the  privi- 
leges and  immunities  of  a  citizen  of  the  United  States." 

Before  leaving  the  subject  of  citizenship,  however,  I  must 
call  attention  to  the  fact  that  this  provision  of  the  fourteenth 
amendment  does  not  cover  every  possible  case.  Children  born 
in  foreign  countries,  of  parents  who  are  citizens  of  the  Uni- 


In  the  Constitution  of  the  United  States.        221 

ted  States,  and  becoming,  afterwards,  subject  to  the  jurisdic- 
tion of  the  United  States  without  being  naturalized,  do  not 
have  their  status  expressly  determined  by  this  clause.  Neither 
do  persons  born  or  naturalized  in  the  United  States  and 
temporarily  out  of  the  jurisdiction  of  the  United  States. 
Neither  do  alien  women  married  to  citizens  of  the  United 
States.  Two  of  these  cases  had  been  already  provided  for 
by  a  statute  of  Congress  before  the  adoption  of  the  four- 
teenth amendment,  viz  ;  the  first  and  the  third.  The  statute 
confers  citizenship  in  the  first  case,  provided  the  father  has 
resided  in  the  United  States,  and,  in  the  third  case,  provided 
the  woman  is  capable  of  naturalization.1  As  to  the  second 
case,  our  custom  regards  citizenship  as  continuing  through 
any  temporary  absence,  i.e.  any  absence  which  contemplates 
a  resumption  of  permanent  residence  in  the  United  States ; 
although  the  person,  unless  enjoying  diplomatic  extra-territori- 
ality,  becomes  temporarily  subject  to  the  civil,  police  and 
criminal  jurisdiction  of  the  foreign  power,  and  any  protection 
which  our  government  may  exercise  over  him,  at  such  time, 
must  be  through  the  forms  of  diplomacy.2 

1  must  also  call  attention  to  the  fact  that  the  Supreme 
Court  of  the  United  States,  in  its  first  interpretation  of  this 
clause,  excludes  children  born  in  the  United  States,  of 
parents  who  are  citizens  or  subjects  of  foreign  states,  from 
United  States  citizenship.3  The  language  of  Mr.  Justice 
Miller,  who  delivered  the  opinion  of  the  Court,  is  as  follows  : 
"The  phrase  'subject  to  its  jurisdiction'  was  intended  to 
exclude  from  its  operation  children  of  ministers,  consuls,  and 
citizens  or  subjects  of  foreign  states  born  within  the  United 
States."  Now,  consuls  and  the  citizens  and  subjects  of  for- 
eign  states,  unless  they  are   of   the  family  or  suite  of  an 

*  United  States  Statutes  at  Large,  vol.  io,  604. 

2  Wheaton,  International  Law,  Boyd's  edition,  Chap.  II;  Bluntschli,  Das  Mo 
derne  Volkerecht,  338. 

3  Slaughter  House  Cases,  U.  S.  Reports,  16  Wallace,  36. 


222  Civil  Liberty 

ambassador  or  minister,  are  themselves  subject,  while  in  the 
United  States,  to  the  jurisdiction  of  the  United  States  and 
of  the  commonwealths  wherein  they  sojourn.  Certainly,  then, 
their  children  are.  The  learned  justice  seems  to  have  had 
some  other  meaning  in  his  mind  for  the  phrase  "subject  to 
its  jurisdiction  "  than  that  commonly  held.  The  general 
understanding  in  regard  to  this  phrase  is  that  it  signifies 
being  within  the  territorial  limits  of  the  state  concerned,  and 
not  enjoying  the  extra-territoriality  of  international  custom. 
Certainly  under  such  a  definition  the  children  born  within 
the  United  States,  of  parents  who  are  foreign  consuls  or  sub- 
jects of  foreign  states,  but  who  do  not  belong  to  the  family 
or  suite  of  an  ambassador  or  minister  or  of  the  diplomatic 
head  of  a  foreign  state,  are  not,  by  the  words  of  the  four- 
teenth amendment,  excluded  from  the  citizenship  of  the  United 
States,  but  are  included  among  those  enjoying  the  same.  The 
Civil  Rights  Act  of  April  9th,  1866,  declared,  "all  persons 
born  in  the  United  States  and  not  subject  to  any  foreign 
power,  excluding  Indians  not  taxed,"  to  be  citizens  of  the 
United  States.1  If  Mr.  Justice  Miller's  interpretation  of  the 
law  rested  upon  the  language  of  this  act,  no  fault  could  be 
found  with  it ;  but,  of  course,  the  constitutional  provision 
overrides  the  act  wherever  they  differ,  and  it  is  the  con- 
stitutional provision  upon  which  he  rests  his  explanation.  I 
think  the  dictum  of  the  Court  is  wiser  law  than  the  consti- 
tution, but  I  do  not  think  it  is  the  law  as  expressed  in  the 
constitution. 

In  a  later  case  Mr.  Justice  Gray,  expressing  the  opinion  of 
the  Court,  upholds  the  view  of  this  subject  advanced  by  Mr. 
Justice  Miller,  and  gives  a  definition  to  the  phrase  "subject 
to  the  jurisdiction  thereof."  He  says:  "The  evident  mean- 
ing of  these  last  words  is,  not  merely  subject  in  some  respect 
or  degree  to  the  jurisdiction  of  the  United  States,  but  com- 

1  United  States  Statutes  at  Large,  vol.  14,  p.  27. 


In  the  Constitution  of  the  United  States.        223 

pletely  subject  to  their  political  jurisdiction,  and  owing  them 
direct  and  immediate  allegiance."  1     According  to  this  defini- 
tion  the  constitutional  provision   should    read :   All    persons 
born  or  naturalized  within  the  United  States,  and  owing  the 
United  States  direct  and  immediate  allegiance,  are  citizens  of 
the  United  States,  etc.     But  to  whom  does  a  person  born  in 
a  given  state  owe  direct  and  immediate  allegiance  ?    This  is  a 
question  as  yet  for  each  state  to  determine  for  itself.     The 
juristic  world  has  found  two  principal  answers  to  it.     They 
are  called  in  legal  language  the  jus  soli  and  the  jus  sanguinis. 
The  English  common  law  contained  the  jus  soli  at  the  time 
of  our  separation  from  the   motherland  ;    it   is   therefore  the 
law  of  the  United  States,  unless  changed  by  constitutional  or 
statutory  provision.     This  has  not  happened.     Now,  what  is 
the  doctrine  of  ih&jus  soli  upon  this  point  ?     It  is  that  any  per- 
son born  within  the  territory  of  a  given  state,  and  over  which 
the  state  has  established  government,  owes  direct  and   im- 
mediate, or  better,  primary  and  natural,  allegiance  to  that 
state,  no  matter  whether  his  parents  be  citizens  or  subjects 
of,  or  aliens  in,  the  said  state.2     There  is  one  case  only  of 
exception  to  this  rule,  viz ;  children  born  of  parents  who  are 
extra-territorial  persons ;  i.e.  who  are  the  diplomatic  heads  or 
the    diplomatic    agents    of    foreign    states.      I  do    not  think 
that  the  dictum  of  Mr.  Justice  Gray  logically  sustains  the  doc- 
trine of  Mr.  Justice  Miller.     The  point  actually  decided  in  the 
case  of  Elk  v.  Wilkins  was  that  an  Indian,  belonging  to  an 
organized  tribe  recognized  by  the  government  of  the  United 
States,  could  become  a  citizen  of  the   United   States   under 
the  fourteenth   amendment  only  by  way  of    naturalization. 
This  is  doubtless  a  sound  interpretation  of  that  provision,  but 
it  does  not  rest  at  all  for  its  validity  upon  the  dictum  that 
children  born  in  the  United  States,  of  parents  who  are  sub- 

1  Elk  v.  Wilkins,  112  U.  S.  Reports,  94. 

2  Munroe  Smith,  Nationality,  in  Cyclopaedia  of  Political  Science  &c.  (Ed.  Lalor1 
vol.  2,  p.  941  ff. 


224  Civil  Liberty 

jects  of  foreign  states,  are  not  citizens  of  the  United  States. 
The  dictum  is  therefore  in  both  cases  obiter,  and  the  meaning 
of  the  constitutional  provision  has  not  been  settled  by  the 
supreme  interpreting  organ  in  a  case  directly  in  point. 

What  now  are  the  privileges  and  immunities  of  citizens  of 
the  United  States  for  the  abridgment  of  which  no  common- 
wealth may  make  or  enforce  any  law  ?  Two  principal  views 
may  be  taken  of  this  subject.  The  first  is,  that  they  cover 
the  whole  civil  liberty  of  the  individual,  as  recognized  in  our 
constitutional  system  ;  the  whole  domain  of  individual  auton- 
omy, as  protected  by  constitutional  law  against  governmental 
encroachment  proceeding  from  either  the  general  government 
or  the  commonwealths.  The  second  is,  that  they  cover  only 
a  part  of  this  liberty,  a  section  of  this  domain  ;  the  other  part 
or  division  being  determined  wholly  by  the  commonwealths 
and  protected  only  by  the  commonwealths.  There  is  no 
doubt  that  the  latter  was  the  legal  view  of  our  system  down  to 
the  time  of  the  incorporation  of  the  thirteenth  and  fourteenth 
amendments  in  the  constitution.  There  is  no  doubt  that, 
from  the  adoption  of  the  constitution  of  1781  to  the  civil  war 
of  1 86 1,  the  commonwealths  held  the  position,  in  our  system, 
of  chief  definers  and  protectors  of  individual  liberty ;  and  that 
the  general  government,  while  forbidden  to  invade  this  sphere 
itself,  was  intrusted  with  the  defense  of  it  against  the  com- 
monwealths at  but  few  points.  It  is  just  as  true,  on  the  other 
hand,  that  the  history  of  those  eighty  years  demonstrated  the 
error  and  the  danger  of  this  distribution  of  power.  If  history 
ever  taught  anything,  it  is  that  civil  liberty  is  national  in 
origin,  content  and  sanction.  Not  all  mankind,  indeed,  are 
capable  of  enjoying  the  same  degree  of  civil  liberty ;  and 
when  the  state  is  composed  of  different  nationalities,  occupy- 
ing distinct  portions  of  its  territory,  it  may  be  a  sound  public 
policy  to  make  the  degree  of  civil  liberty  accorded  corre- 
spond with  the  degree  of  general  civilization  which  each  may 
have  attained ;  but  this  again  is  only  saying  that  civil  liberty 


In  the  Constitution  of  the  United  States.       225 

is  national  where  the  state  is  a  conglomerate  of  different 
nations.  On  the  other  hand,  where  the  population  of  the 
state  is  substantially  national,  i.e.  where  the  population  of 
the  state  speaks  a  common  language  and  has  attained  a  sub- 
stantial consensus  of  opinion  in  regard  to  the  fundamental 
principles  of  rights  and  wrongs,  there  the  nationalization  of 
civil  liberty  has  become  complete  in  fact,  and,  if  it  has  not 
already  become  so  in  law,  the  impulse  to  adjust  the  form  to 
the  reality  will  never  rest  until  it  forces  the  public  law  of  the 
state,  upon  this  subject,  into  correspondence  with  its  political 
science. 

I  say  that  if  history  has  taught  anything  in  political  sci- 
ence, it  is  that  civil  liberty  is  national  in  its  origin,  content 
and  sanction.  I  now  go  further,  and  I  affirm  that  if  there 
is  but  a  single  lesson  to  be  learned  from  the  specific  history 
of  the  United  States,  it  is  this.  Seventy  years  of  debate 
and  four  years  of  terrible  war  turn  substantially  upon  this 
issue,  in  some  part  or  other  ;  and  when  the  Nation  triumphed 
in  the  great  appeal  to  arms,  and  addressed  itself  to  the  work 
of  readjusting  the  forms  of  law  to  the  now  undoubted  condi- 
tions of  fact,  it  gave  its  first  attention  to  the  nationalization 
in  constitutional  law  of  the  domain  of  civil  liberty.  There  is 
no  doubt  that  those  who  framed  the  thirteenth  and  fourteenth 
amendments  intended  to  occupy  the  whole  ground  and  thought 
they  had  done  so.  The  opposition  charged  that  these  amend- 
ments would  nationalize  the  whole  sphere  of  civil  liberty  ; a 
the  majority  accepted  the  view;2  and  the  legislation  of  the 
Congress  for  their  elaboration  and  enforcement  proceeded 
upon  that  view.3  In  the  face  of  all  of  these  well-known  facts, 
it  was  hardly  to  be  doubted  that,  when  a  case  involving  this 
question  should  be  presented  to  the  Supreme  Court  of  the 

1  Congressional  Globe,  ist  session,  39th  Congress,  part  3,  pp.  2530-38. 

2  Ibid.,  p.  2542. 

9  United  States  Statutes  at  Large,  vol.  14,  p.  27  ff.;  vol.  16,  p.  140  ff.;  vol.  18 

part  3»  P-  336  ff- 


226  Civil  Liberty 

United  States,  the  final  interpreting  organ  of  the  constitution 
upon  all  issues  touching  directly  individual  liberty,  this  great 
body  would  unanimously  declare  the  whole  domain  of  civil 
liberty  to  be  under  its  protection  against  both  the  general 
government  and  the  commonwealths.  Great,  therefore,  was 
the  surprise  felt  by  the  scientific  students  of  our  political  his- 
tory when,  in  the  December  term  of  1872,  the  decision  in  the 
Slaughter  House  Cases *  was  announced,  taking  the  other 
ground,  viz ;  that  still  only  a  part  of  civil  liberty  has  been 
nationalized,  and  that  by  far  the  larger  and  more  important 
part  is  still  subject,  without  appeal,  to  the  power  of  the  com- 
monwealths. This  opinion  was  concurred  in  by  only  a  bare 
majority  of  the  court.  Both  the  chief  justice,  who  had  been 
one  of  the  principal  actors  in  the  great  conflict  through 
which  it  was  supposed  that  the  thorough-going  settlement  of 
this  question  had  been  reached,  and  Mr.  Justice  Field,  who 
was  regarded  as  the  sturdy  defender  of  the  powers  of  the 
commonwealths  against  centralization,  dissented.  Mr.  Justice 
Field  wrote  the  dissenting  opinion,  which  was  concurred 
in  by  Chief  Justice  Chase  and  Justices  Swayne  and  Bradley. 
He  held,  to  quote  his  own  language,  that  the  fourteenth 
amendment  "does  not  attempt  to  confer  any  new  privileges 
or  immunities  upon  citizens,  or  to  enumerate  or  define  those 
already  existing.  It  assumes  that  there  are  such  privileges 
and  immunities  which  belong  of  right  to  citizens  as  such, 
and  ordains  that  they  shall  not  be  abridged  by  State  "  (com- 
monwealth) "legislation.  If  this  inhibition  has  no  reference 
to  privileges  and  immunities  of  this  character,  but  only 
refers,  as  held  by  the  majority  of  the  court  in  their  opinion, 
to  such  privileges  and  immunities  as  were  before  its  adop- 
tion specially  designated  in  the  constitution,  or  necessarily 
implied  as  belonging  to  citizens  of  the  United  States,  it  was 
a  vain  and  idle  enactment,  which  accomplished  nothing,  and 

1  U.  S.  Reports,  16  Wallace,  36. 


In  tJie  Constitution  of  the  United  States.        227 

most  unnecessarily  excited  Congress  and  the  people  on  its 
passage.  With  privileges  and  immunities  thus  designated 
or  implied  no  State "  (commonwealth)  "  could  ever  have 
interfered  by  its  laws,  and  no  new  constitutional  provision 
was  required  to  inhibit  such  interference.  The  supremacy 
of  the  constitution  and  the  laws  of  the  United  States  always 
controlled  any  State"  (commonwealth)  "legislation  of  that 
character.  .  .  .  What,  then,  are  the  privileges  and  immu- 
nities which  are  secured  against  abridgment  by  State " 
(commonwealth)  "legislation?  In  the  first  section  of  the 
Civil  Rights  Act  Congress  has  given  its  interpretation  to 
these  terms,  or  at  least  has  stated  some  of  the  rights  which, 
in  its  judgment,  these  terms  include;  it  has  there  declared 
that  they  include  the  right  to  make  and  enforce  contracts, 
to  sue,  be  parties,  and  give  evidence,  to  inherit,  purchase, 
lease,  hold,  and  convey  real  and  personal  property,  and  to 
the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the 
security  of  person  and  property.  That  act,  it  is  true,  was 
passed  before  the  fourteenth  amendment  was  adopted,  but 
the  amendment  was  adopted,  as  I  have  already  said,  to  obvi- 
ate objections  to  the  act,  or,  speaking  more  accurately,  I 
should  say,  to  obviate  objections  to  legislation  of  a  similar 
character,  extending  the  protection  of  the  national  govern- 
ment over  the  common  rights  of  all  citizens  of  the  United 
States.  Accordingly,  after  its  ratification,  Congress  re- 
enacted  the  act,  under  the  belief  that  whatever  doubts  may 
have  previously  existed  of  its  validity,  they  were  removed  by 
the  amendment.  .  .  .  The  privileges  and  immunities  desig- 
nated are  those  which  of  right  belong  to  the  citizens  of  all 
free  governments!' 

Expressed  in  the  nomenclature  which  I  have  adopted  in 
this  treatise,  Mr.  Justice  Field  and  his  three  learned  col- 
leagues held  that  the  fourteenth  amendment  had  nationalized 
the  common  law  in  regard  to  civil  liberty,  and  had  placed  its 
protection  and  development  under  the  power  and  guardian- 


228  Civil  Liberty 

ship  of  the  United  States  judiciary.  Mr.  Justice  Miller,  who 
delivered  the  opinion  of  the  majority,  should  have  no  ob- 
jection to  that  view.  Upon  what  other  principle  can  his  own 
opinion  and  that  of  the  majority  of  the  Court  stand  in  the 
case  of  Watson  v.  Jones?1  In  that  case,  decided  before  the 
Slaughter  House  Cases,  he  affirmed  a  decision  and  decree  of 
the  Circuit  Court  of  the  United  States,  which  overturned 
a  decision  of  the  highest  court  of  law  of  the  commonwealth 
of  Kentucky,  upon  a  question  which,  according  to  all  pre- 
vious canons  of  interpretation  and  practice,  could  come 
before  the  courts  of  the  United  States  only  because  of  the 
fact  that  the  parties  to  the  controversy  were  residents  of  dif- 
ferent commonwealths,  and  which,  therefore,  should  have 
been  decided  by  the  United  States  courts  in  accordance  with 
the  law  as  determined  by  the  highest  court  of  law  of  the 
commonwealth.  There  is  only  one  other  possible  principle 
upon  which  it  can  stand,  viz ;  that  the  common  law  in  refer- 
ence to  the  fundamental  principles  of  individual  liberty  was 
always  national,  both  before  as  well  as  after  the  enactment  of 
the  thirteenth  and  fourteenth  amendments.  But  this  Mr. 
Justice  Miller  would  doubtless  deny  even  more  strenuously 
than  that  it  was  made  so  by  the  thirteenth  and  fourteenth 
amendments. 

From  whatever  point  of  view  I  regard  the  opinion  of  the 
Court  in  the  Slaughter  House  Cases,  —  from  the  historical, 
political,  or  juristic,  —  it  appears  to  me  entirely  erroneous. 
It  appears  to  me  to  have  thrown  away  the  great  gain  in  the 
domain  of  civil  liberty  won  by  the  terrible  exertions  of  the 
nation  in  the  appeal  to  arms.  I  have  perfect  confidence 
that  the  day  will  come  when  it  will  be  seen  to  be  intensely 
reactionary  and  will  be  overturned.  But  until  then  it  is  the 
law  of  the  land,  and  as  such  I  must  state  it  in  detail. 

The  opinion  declares  that  "  there  is  a  citizenship  of  the 

1  U.  S.  Reports,  13  Wallace,  679. 


In  the  Constitution  of  the  United  States.        229 

United  States  and  a  citizenship  of  a  State  "  (commonwealth), 
"  which  are  distinct  from  each  other  and  which  depend  upon 
different  characteristics  and  circumstances  in  the  individual"  ; 
that  "  there  is  a  difference  between  the  privileges  and  immu- 
nities belonging  to  a  citizen  of  the  United  States  as  such,  and 
those  belonging  to  the  citizen  of  the  State  "  (commonwealth) 
"as  such"  ;  that  "the  latter  must  rest  for  their  security  and 
protection   where    they   have    heretofore    rested,"    and   the 
former  only  "  are  placed  under  the  protection  of  the  Federal 
Constitution"  ;  that  the  privileges  and  immunities  of  a  citizen 
of  the  United  States  are  free  access  to  the  seat  of  govern- 
ment of  the  United  States  in  order  "  to  assert  any  claim  he 
may  have  upon  that  government,  to  transact  any  business  he 
may  have  with  it,  to  seek  its  protection,  to  share  its  offices, 
to  engage  in  its  administrative  functions  ;  free  access  to  the 
seaports,  the  sub-treasuries,  land  offices,  and  courts  of  justice 
in    the    several   States "    (commonwealths)  ;    protection  over 
"  life,  liberty,  and  property,  when  on  the  high  seas  or  within 
the   jurisdiction  of  a  foreign   government";    the   "right  to 
assemble  peaceably  and  petition  for  redress  of  grievances  ; 
the  privilege  of  the  writ  of  habeas  corpus  ;  the  right  to  use 
the  navigable  waters  of  the  United  States  ;  all  rights  secured 
to  our  citizens  by  treaties  with  foreign  nations  ;   the  right 
to  become  a  citizen  of  any  State"  (commonwealth)   "of  the 
Union  by  a  bona  fide  residence  therein,  with  the  same  rights 
as  other  citizens  of  that  State"  (commonwealth).     "To  these 
may  be   added   the    rights    secured   by  the   thirteenth   and 
fifteenth  articles   of  amendment    and   by  the  other  clauses 
of  the  fourteenth."     I'do  not  find  in  this  enumeration  the 
privilege    of    United    States    citizenship,   created  by  article 
IV,   section  2,  paragraph    1    of  the  constitution,  that   "citi- 
zens   of   each    State  "    (commonwealth)    "shall    be    entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several 
States"    (commonwealths).      Of   course   this   is    mere  over- 
sight, since  the  court  has  relieved  a  citizen  of  one  common- 


230  Civil  Liberty 

wealth  going  into  another  from  any  discriminations  which 
the  latter  may  have  sought  to  make  against  him.1  I  shall  not 
enter  upon  any  further  criticism  of  this  most  ominously 
important  decision.  I  will  only  add  that,  coming  at  the 
time  when  the  reaction  had  begun  to  set  in  against  the 
pronounced  nationalism  of  the  preceding  decade,  it  partook 
of  the  same,  and  set  the  direction  towards  the  restoration  of 
that  particularism  in  the  domain  of  civil  liberty,  from  which 
we  suffered  so  severely  before  1861,  and  from  which  we  are 
again  suffering  now. 

Lastly,  against  what  power  is  the  inhibition  in  this  clause 
of  the  constitutional  provision  directed  ?  The  language  upon 
this  point  is  a  little  different  from  that  employed  in  the 
clause  which  I  have  considered  on  pages  209  and  210.  In 
the  case  which  I  am  now  discussing  it  is  declared  that  "  no 
State"  (commonwealth)  "shall  make  or  enforce  any  law 
which  shall  abridge,"  etc. ;  in  the  other  case  the  provision 
reads:  "nor  shall  any  State"  (commonwealth)  "deny,"  etc. 
The  two  expressions,  however,  have  one  and  the  same  signifi- 
cation. The  commonwealth  can  act  only  through  the  making 
and  enforcing  of  laws  ;  in  fact,  it  can  act  upon  the  individual 
only  by  the  process  of  enforcing  the  laws.  The  phrase 
"no  State"  (commonwealth)  "shall  make  or  enforce  any  law" 
means,  therefore,  practically,  that  no  commonwealth  shall, 
through  any  of  the  instrumentalities  employed  by  it  in  the 
administration  of  government,  do  anything  or  omit  anything 
which  will  abridge  the  privileges  and  immunities  of  a  citizen 
of  the  United  States.2  The  inhibition  is  therefore  directed 
against  any  of  the  agents  or  officers  of  the  commonwealth 
authorized  to  exercise  its  governmental  powers.  I  have  already 
pointed  out  the  fact  that  a  late  decision  of  the  Supreme  Court 
of  the  United  States  has  modified  this  sound  rule  somewhat, 
and,  as  I  think,  injuriously.3    The  commonwealth  may  escape 

1  Ward  v.  Maryland,  U.  S.  Reports,  12  Wallace,  163. 

2  Ex  parte  Virginia,  100  U.  S.  Reports,  339.  3  p.  2IO. 


In  the  Constitution  of  the  United  States.        231 

the  charge  of  a  violation  of  "  clue  process  "  and,  by  parity  of 
reasoning,  of  abridging  "the  privileges  and  immunities  of  a 
citizen  of  the  United  States,"  if  the  injury  to  the  individual 
should  occur  through  an  erroneous  decision  made  by  one  of 
the  courts  of  the  commonwealth  under  a  commonwealth 
statute  which,  if  properly  interpreted,  would  not  inflict  the 
injury.1  By  parity  of  reasoning,  again,  I  do  not  see  why  the 
commonwealth  may  not  escape  responsibility  for  the  erro- 
neous interpretation  of  such  a  statute  by  one  of  its  executive 
officers  in  the  course  of  its  enforcement.  In  fact,  this  would 
not  be  at  all  so  dangerous  to  the  liberty  of  the  individual, 
since  he  might  apply  to  the  commonwealth  courts  for  protec- 
tion against  the  same  ;  while,  in  case  the  erroneous  interpre- 
tation should  be  made  by  the  highest  court  of  the  common- 
wealth, he  can  find  no  relief,  should  the  United  States  courts 
be  shut  against  him,  except,  perchance,  through  an  appeal  to 
the  commonwealth  legislature  itself.  Should  he  go  there, 
however,  he  would  meet  another  difficulty,  viz ;  the  principle 
in  our  system  that  the  judicial  interpretations  of  law  stand, 
in  the  order  of  supremacy,  above  the  legislative.  If  the  court 
should  adhere  to  its  interpretation,  the  legislature  can  defeat 
it  only  through  impeachment  of  the  judges.  In  short,  it 
is  practically  impossible  for  the  individual  to  secure  the 
protection  of  his  immunities  and  privileges  as  a  citizen  of 
the  United  States  against  such  erroneous  interpretation  of  a 
commonwealth  statute  by  the  highest  court  of  the  common- 
wealth unless  he  can  take  his  case  to  the  bar  of  the  United 
States  courts. 

Such,  however,  is  the  law  upon  the  subject ;  and,  reiterated 
briefly,  it  is  that  the  inhibition  in  this  clause  of  the  constitu- 
tional provision  is  directed  against  the  law-making  power  of 
the  commonwealths,  those  governmental  agents  of  the  com- 
monwealths  executing  its  laws  under  correct  interpretation 

1  Arrowsmith  v.  Harmoning,  118  U.  S.  Reports,  194. 


232  Civil  Liberty 

thereof,  and  those  officials  and  agents  whom  the  law-making 
power  of  the  commonwealth  clothes  with  discretionary  pow- 
ers, and  who,  in  the  exercise  of  these  powers,  abridge  any 
of  the  privileges  and  immunities  of  a  citizen  of  the  United 
States.  These  are  the  commonwealth  organs  which  are  com- 
prehended in  the  term  "  State  "  as  employed  in  this  provision, 
and  whose  acts  are  to  be  regarded  as  the  acts  of  the  "  State." 
The  acts  of  any  other  organs,  when  coming  into  conflict 
with  the  privileges  and  immunities  of  a  citizen  of  the  United- 
States,  are  ultra  vires,  and  the  commonwealth  is  not  respon- 
sible for  them ;  i.e.  their  correction  cannot  be  assumed  by  the 
courts  of  the  United  States,  but  must  be  left  with  the  com- 
monwealth. 

4.  Finally,  the  Court  has  decided  that  the  constitutional 
provision  vesting  in  the  Congress  of  the  United  States  the 
power  "  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  States"  (commonwealths),  "and  with  the 
Indian  tribes,"1  is  an  inhibition  upon  the  commonwealths  in 
behalf  of  the  individual,  and  renders  any  attempt  of  the  com- 
monwealths to  restrict  the  ingress  and  egress  of  persons,  or 
in  any  manner  to  regulate  the  same  beyond  police  necessities, 
null  and  void.2  What  the  police  necessities  of  the  common- 
wealths in  this  respect  are,  the  Court,  as  in  other  cases, 
reserves  to  itself  to  determine  in  detail.  I  have  treated  of 
the  general  character  of  the  police  power  and  will  make  ref- 
erence to  what  I  have  already  said  rather  than  indulge  in 
repetition.3 

II.     The  Immunities  in  respect  to  Private  Property. 

The  individual  is  authorized  by  the  constitution  to  invoke 
the  aid  of  the  United  States  government,  in  certain  cases 
against  the  general  power  of  controlling  property,  attributed 
in  our  system  to  the  commonwealths. 

1  Art.  I,  sec,  8,  §  3. 

2  Henderson  et  al.  v.  Mayor  of  N.  Y.  ei  al,  92  U.  S.  Reports,  259;  Welton  v. 
Missouri,  91  U.  S.  Reports,  275;  Wabash  &c.  Railway  Co.  v.  Illinois,  118  U.  S. 
Reports,  557.  3  P-  213  ff. 


In  the  Constitution  of  the  United  States.       233 

I.  The  commonwealths  are  inhibited,  without  the  consent 
of  the  legislature  of  the  United  States,  from  levying  and  col- 
lecting any  imposts  or  duties  upon  any  article  in  the  hands  of 
the  person  who  sends  it  directly  to,  or  receives  it  directly  from, 
a  foreign  country,  except  in  so  far  as  this  shall  be  necessary 
to  defray  the  expenses  incurred  by  the  commonwealth  in  ex- 
amining the  article  and  making  certification  as  to  its  quality  or 
fitness  for  use  ; J  from  levying  and  collecting  any  charge  upon 
any  vessel  according  to  its  tonnage,  as  an  instrument  of  com- 
merce, for  entering  or  leaving  a  port  or  navigating  the  public 
waters  of  the  country  ; 2  and  from  levying  and  collecting  any 
tax  upon  the  property  and  lawful  agencies  and  instrumental- 
ities of  the  general  government,  no  matter  in  whose  hands 
they  may  be  found,3  or  upon  franchises  conferred  by  Con- 
gress,4 or  upon  receipts  of  a  telegraph  company  from  inter- 
commonwealth  business,5  or  upon  receipts  from  any  inter- 
commonwealth  business  carried  on  by  anybody.6  Finally, 
the  legislatures  of  the  commonwealths  are  inhibited  from 
exercising  their  general  powers  of  legislation  in  regard  to 
taxation  or  eminent  domain  in  such  a  manner  as  to  take,  or 
to  authorize  anybody  to  take,  private  property,  without  the 
owner's  consent,  for  any  but  a  public  object.7  It  is  not  said 
that  the  legislature  of  a  commonwealth  is  thus  inhibited, 
should  it  be  specifically  authorized  thereto  by  a  provision  of 
the  constitution  of  the  commonwealth. 

1  Constitution,  Art.  I,  sec.  10,  §  2;  Brown  v.  Maryland,  U.  S.  Reports,  12 
Wheaton,  419;  Turner  v.  Maryland,  107  U.  S.  Reports,  38. 

2  Constitution,  Art.  I,  sec.  10,  §  3;   Huse  v.  Glover,  119  U.  S.  Reports,  543. 

8  McCulloch  v.  Maryland,  U.  S.  Reports,  4  Wheaton,  316;  Dobbins  v.  The 
Commissioners  of  Erie  County,  Ibid.  16  Peters,  435;  Bank  Tax  Cases,  Ibid.  2 
Wallace,  200;  Van  Brocklin  v.  Tennessee,  117  Ibid.  151. 

4  California  v.  Central  Pacific  R.  R.  Co.,  127  U.  S.  Reports,  1. 

6  Rotterman  v.  Western  Union  Telegraph  Co.,  127  U.  S.  Reports,  41 1. 

6  Wabash  &c.  Railway  Co.  v.  Illinois,  118  U.  S.  Reports,  557;  Robbins  v. 
Shelby  Taxing  District,  120  Ibid.  489. 

7  Loan  Association  v.  Topeka,  U.  S.  Reports,  20  Wallace,  655  ;  Parkersburg 
v.  Brown,  106  U.  S.  Reports,  487;   Cole  v.  La  Grange,  113  U.  S.  Reports,  1. 


234  Civil  Liberty 

2.  The  commonwealths  are  inhibited  from  depreciating  the 
property  of  their  creditors,  or  aiding  individual  debtors  to 
depreciate  the  property  of  their  creditors,  by  making  anything 
a  legal  tender  in  the  payment  of  debts  except  the  gold  and 
silver  coin  of  the  United  States.1 

3.  The  commonwealths  are  inhibited  from  restricting  or 
regulating  the  transmission  of  property  or  messages  by  per- 
sons in  the  United  States  to  persons  in  foreign  states,  or  by 
persons  in  one  commonwealth  to  persons  in  another.2 

4.  The  commonwealths  are  inhibited  from  passing  any 
law  impairing  the  obligation  of  contracts.3  This  provision 
demands  a  more  minute  examination  and  explanation. 

First.  The  power  against  which  the  inhibition  is  directed 
is  not  exactly  the  same  as  that  comprehended  under  the 
word  "State"  (commonwealth),  as  employed  in  the  foregoing 
clauses  and  as  explained  at  the  close  of  subdivision  I,  of  this 
subject.  The  language  of  the  constitution,  in  this  clause,  is 
that  "no  State  shall  .  .  .  pass  any  .  .  .  law  impairing,"  etc.  ; 
and  the  Court  has  decided  that  "  the  prohibition  is  aimed  at 
the  legislative  power  of  the  State"  (commonwealth),  "and 
not  at  the  decisions  of  its  courts  or  the  acts  of  administrative 
or  executive  boards  or  officers."'1  The  impairing  of  the  obli- 
gation must  be  made  by  a  provision  of  the  constitution  of  the 
commonwealth,  or  by  some  act  passed  by  the  legislature  of 
the  commonwealth,5  in  order  to  warrant  the  intervention  of 
the  United  States  judiciary  in  behalf  of  the  individual  against 
the  same.6 


1  Constitution,  Art.  I,  sec.  IO,  §  I. 

2  Henderson  et  al.  v.  Mayor  of  N.  Y.  et  al.,  92  U.  S.  Reports,  259;    Welton  v. 
Missouri,  91  Ibid.  275;   Wabash  &c.  Railway  Co.  v.  Illinois,  118  Ibid.  557. 

3  Constitution,  Art.  I,  sec.  10,  §  1. 

4  New  Orleans  Waterworks  Co.  v.  Louisiana  Sugar  Refining  Co.,  125  U.  S. 
Reports,  18. 

5  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  Reports,  650. 

6  It  does  not  matter,  however,  whether  the  act  or  provision   be  original    or 
adopted.     Williams  v.  Brufty,  96  (J.  S.  Reports,  1 76. 


In  the  Constitution  of  the  United  States.        235 

Second.  The  term  "contract"  has,  in  this  connection, 
been  made  subject  to  exhaustive  definition  by  the  courts.  It 
is  held  to  mean  a  legally  binding  agreement  in  respect  to 
property,  either  expressed  or  implied,  executory  or  executed, 
between  private  parties,  or  between  a  commonwealth  and  a 
private  party  or  private  parties  ;  or  a  grant  from  one  party  to 
another ;  or  a  grant,  charter,  or  franchise  from  a  common- 
wealth to  a  private  party  or  private  parties.1 

Third.  The  term  "  obligation "  has  received  an  equally 
exact  and  exhaustive  definition.  It  is  held  to  mean  the  exist- 
ing body  of  law,  defining,  regulating,  securing  and  giving 
sanction  to  the  contract.2  In  fact,  we  may  say  that  the  chief 
element  in  the  obligation  is  the  existing  remedy  provided  by 
law  for  its  enforcement.3  Any  distinction,  therefore,  between 
the  obligation  and  the  remedy,  in  this  connection,  is  unsound.4 

Fourth.  The  most  important  term  of  the  clause  is  the 
word  "impair."  Any  alteration  of  the  substance  of  the  con- 
tract, or  of  the  law  governing  the  contract  at  the  time  it  was 
entered  into,  would  be,  in  popular  definition,  an  impairment. 
There  are,  however,  some  grave  difficulties  in  the  way  of 
accepting  this  as  the  legal  definition  of  the  term.  Shall,  for 
example,  a  commonwealth  be  regarded  as  impairing  the  obli- 
gation of  a  contract  by  simply  changing  its  judicial  proced- 
ure for  the  enforcement  of  the  same,  or  by  defending  the 
public    health   or   morals    against   any   baleful    influence   or 


1  Fletcher  v.  Peck,  U.  S.  Reports,  6  Cranch,  87;  Vanhorne  v.  Dorrance,  Ibid. 
2  Dallas,  304;  Dartmouth  College  v.  Woodward,  Ibid.  4  Wheaton,  518;  The 
Binghampton  Bridge,  Ibid.  3  Wallace,  51;  Hall  v.  Wisconsin,  103  U.  S.  Reports, 
5;  New  Orleans  Water  Works  Co.  v.  Rivers,  115  Ibid.  674;  St.  Tammany  Water 
Works  v.  New  Orleans  Water  Works,  120  Ibid.  64. 

2  Bronson  and  Kinzie,  U.  S.  Reports,  1  Howard,  31 1;  McCracken  v.  Hayward, 
Ibid.  2  Howard,  608. 

8  Walker  v.  Whitehead,  U.  S.  Reports,  16  Wallace,  314;  Tennessee  v.  Sneed, 
96  U.  S.  Reports,  69;  Edwards  v.  Kearzey,  96  Ibid.  595;  Louisiana  v.  New 
Orleans,  102  Ibid.  203. 

*  Nelson  v.  St.  Martin's  Parish,  III  U.  S.  Reports,  716. 


236  Civil  Liberty 

effect,  which  might  arise  by  a  strict  adherence  to  the  same? 
In  other  words,  is  the  power  of  the  commonwealth  to  control 
its  public  policy  in  matters  pertaining  to  judicial  and  police 
regulations  limited  by  the  body  of  contracts  existing  at  any 
particular  moment  ? 

The  first  part  of  this  question  was  answered  in  an  early 
case,  and  to  the  position  then  taken  the  Court  has  substan- 
tially adhered  ever  since.  The  Court  held  that  the  common- 
wealth may  change  its  judicial  procedure  without  making 
any  distinction  between  past  and  future  contracts  in  the 
application  of  the  new  forms ;  but  must  not,  under  the  cloak 
of  the  same,  so  change  the  nature  and  extent  of  existing 
remedies  as  materially  to  impair  the  rights  and  interests  of 
any  of  the  parties.1  In  re-affirming  this  opinion,  twenty 
years  later,  the  Court  said:  "It  is  difficult,  perhaps,  to  draw  a 
line  that  would  be  applicable  in  all  cases  between  legitimate 
alterations  of  the  remedy  "  under  the  power  to  regulate  the 
modes  of  procedure,  "and  provisions  .  .  .  which  impair  the 
right " ;  but  the  Court  entirely  concurred  in  the  rule  of  the 
former  case.2  The  Court  has  pointed  out  the  chief  things 
which  may  not  be  done  by  a  commonwealth,  under  its 
power  to  regulate  its  judicial  procedure.  It  may  not  pass  an 
insolvent  law  which  shall  apply  to  past  contracts.3  It  may 
not  suspend  the  remedy  as  to  past  contracts.4  It  may  not  so 
shorten  the  period  of  a  statute  of  limitations  as  not  to  leave 
a  reasonable  time  for  the  commencement  of  a  suit.5  It  may 
not  substitute  any  other  means  of  payment  than  that  ex- 
pressed or  implied  in  the  contract,6  or  any  other  measure 


1  Green  v.  Biddle,  U.  S.  Reports,  8  Wheaton,  I. 

2  Bronson  v.  Kinzie,  U.  S.  Reports,  I  Howard,  31 1. 

8  Sturgis  v.  Crowningshield,  U.  S.  Reports,  4  Wheaton,  122. 
4  Cooley,  Constitutional  Limitations,  357,  fourth  edition. 

6  Hawkins  v.  Barney,  U.  S.  Reports,  5  Peters,  457;   Sohn  v.  Waterson,  Ibid.  1 7 
Wallace,  596;  Terry  v.  Anderson,  95  U.  S.  Reports,  628. 
6  McCracken  v.  Hayward,  U.  S.  Reports,  2  Howard,  608. 


In  the  Constitution  of  the  United  States.       237 

of  values.1  It  may  not  make  such  subsequent  exceptions  of 
property  from  sale  in  execution  of  judgment  for  satisfaction 
of  debt  upon  contract  as  shall  substantially  weaken  the  gen- 
eral security  upon  which  the  contract  rested  when  it  was 
made.2  It  may  not  withdraw  from  the  lien  of  the  judgment 
property  which,  when  judgment  was  obtained,  was  bound 
thereby.3  It  may  not  subsequently  prohibit  the  sale  of  prop- 
erty, on  execution  for  debt  upon  contract,  for  less  than  an 
appraised  value  or  percentage  of  an  appraised  value.4  It  may 
not  subsequently  authorize  a  redemption  of  property,  after 
sale,  by  a  mortgagor  or  his  creditors,  nor  extend  the  period 
for  redemption,  if  any,  which  was  legal  at  the  time  the  con- 
tract was  made,5  etc. 

The  Court  has  given  a  very  distinct,  though  more  recent, 
answer  to  the  second  part  of  our  question.  It  holds  that 
not  only  is  the  police  power  of  a  commonwealth  unlimited  by 
the  body  of  contracts  existing  at  any  given  moment  of  time, 
but  that  a  commonwealth  cannot  by  any  contract  divest  itself 
of  the  police  power  or  limit  the  exercise  of  the  same  according 
to  its  own  discretion.6  What  the  boundaries  and  content  of 
the  police  power  of  a  commonwealth  are  the  Court  has  not 
clearly  denned,  as  I  have  elsewhere  explained.  As  I  have 
shown,  the  Court  has  given  it  an  excessively  wide  range.7 
It  has  treated  it  as  nearly  identical  with  the  whole  internal 
government  of  the  commonwealth,  less  the  jural  power.  I 
believe  this  to  be  extravagant,  as  I  have  elsewhere  said.8 

The  Court  has,  however,  excluded  in  detail  from  the  police 


1  Effinger  v.  Kenney,  115  U.  S.  Reports,  566. 

2  Edwards  v.  Kearzey,  96  U.  S.  Reports,  595. 

8  Gunn  v.  Barry,  U.  S.  Reports,  15  Wallace,  610. 

*  McCracken  v.  Hayward,  U.  S.  Reports,  2  Howard,  608. 

5  Bronson  v.  Kinzie,  U.  S.  Reports,  1  Howard,  310;   Howard  v.  Bugbee,  Ibid. 
24  Howard,  461. 

6  Boyd  v.  Alabama,  94  U.  S.  Reports,  645;    Beer  Co.  v.  Massachusetts,  97 
Ibid.  25. 

7  p.  212.  8  p.  213  ff. 


238  Civil  Liberty 

power,  when  brought  into  conflict  with  existing  contracts, 
some  things  which,  according  to  its  general  definition,  would 
appear  to  be  included  in  it. 

It  has  decided,  for  example,  that  a  commonwealth  cannot 
rescind  an  agreement,  made  by  itself,  not  to  exercise  the  power 
of  taxation,  or  to  exercise  it  only  within  certain  limits.1  In 
other  words,  it  is  law  in  our  system  that  a  commonwealth 
legislature  may  bargain  away  the  tax  power  of  the  common- 
wealth, unless  prohibited  therefrom  by  the  commonwealth 
constitution,  and  that,  if  it  does  do  so,  the  United  States  gov- 
ernment will  protect  the  rights  of  individuals  established  un- 
der the  contract.  In  still  other  words,  it  is  law  in  our  system 
that  a  commonwealth  may  create  a  property  right  in  an  indi- 
vidual to  an  exemption  from  the  operation  of  a  governmental 
power.  What  is  this  but  the  negative  side  of  the  feudal 
system  ?  It  seems  to  me  that  a  sound  interpretation  of  the 
constitution  of  the  United  States  would  not  accord  to  the 
commonwealths  the  power  to  divest  themselves  by  contract 
of  the  power  of  taxation ;  and  this  for  two  reasons.  The 
first  is  that,  according  to  the  true  history  and  spirit  of  our 
system,  the  commonwealths  are  simply  local  governments, 
entrusted  by  the  sovereign  behind  both  the  local  and  the 
general  governments  with  governmental  powers  only,  and 
that  their  discretion  in  the  exercise  of  these  powers  cannot 
extend  to  the  point  of  conferring  upon  any  person  or  body 
of  persons  a  right  to  an  exemption  from  their  exercise.  The 
power  to  do  this  is  not  a  governmental  power  merely.  It  is 
a  power  to  change  the  system  of  government.  It  is  a  sov- 
ereign power.  The  commonwealth  may  of  course  exempt 
certain  persons  or  property  from  taxation,  but  that  is  alto- 
gether another  thing  from  an  irrevocable  exemption  from  its 
power  of  taxation.  A  temporary  or  a  permanent  suspension 
of  the  employment  of  a  power  is  not  at  all  the  same  thing  as 

1  The  Jefferson  Branch  Bank  v.  Skelly,  U.  S.  Reports,  1  Black,  436;  Univer- 
sity v.  People,  99  U.  S.  Reports,  309. 


/;/  the  Constitution  of  the  United  States.        239 

the  creation  of  a  disability  to  employ  the  power.  This,  I  say, 
the  sovereign  alone  can  do,  and  the  sovereign  in  our  system 
is  not  the  commonwealth.  The  second  reason  is  that  the 
constitution  expressly  provides  that  the  United  States  shall 
guarantee  to  every  commonwealth  a  republican  form  of  gov- 
ernment.1 It  is  not  easy  to  define  the  republican  form  ;  but 
it  seems  to  me  that  one  of  its  prominent  characteristics  is  the 
preservation  of  all  governmental  powers  by  the  government 
and  their  divestment  only  by  the  act  of  the  sovereign.  The 
most  direct  antithesis  to  republican  government  is  the  feudal 
form,  because  republican  government  is  above  all  things 
representative  government  ;2  because  it  regards  government 
as  public  business  purely  and  condemns  in  toto  any  property 
rights  in  governmental  powers  or  in  exemptions  from  their 
operation.  The  absolute  monarchy  stands  in -far  less  blunt 
contradiction  to  the  republican  form.  The  most  truly  abso- 
lute monarch  of  modern  times  declared  himself  to  be  but  the 
"first  servant  of  the  state,"  i.e.  the  first  representative  of  the 
state  ;  but  the  feudal  form,  upon  both  its  negative  and  posi- 
tive sides,  is  thoroughly  unrepresentative,  and  deals  with 
public  powers  as  with  private  rights. 

On  the  other  hand,  the  Court  has  decided  that  a  common- 
wealth cannot  so  grant  away  its  power  of  eminent  domain 
that  the  constitution  of  the  United  States  will  vest  in  an 
individual  a  right  against  the  future  exercise  of  that  power 
upon  the  same  property.3  I  must  say  that  I  do  not  compre- 
hend the  reasoning  which,  upon  general  principles,  concedes 
the  power  to  a  commonwealth  to  create  a  right  to  an  exemp- 
tion from  one  of  its  governmental  powers  and  not  from 
another;  nor  is  there  any  such  distinction  between  the  powers 
in  question  as  to  justify  such  discrimination.  Governmental 
powers  are,  in  all  cases,  public  trusts ;  and  the  exemption  of 

1  Constitution,  Art.  IV,  sec.  4. 

2  The  Federalist,  No.  XXXVIII,  University  edition,  p.  259. 
8  Boom  Co.  v.  Patterson,  98  U.  S.  Reports,  403. 


240  Civil  Liberty 

an  individual  from  the  operation  thereof,  as  well  as  the  invest- 
ment of  an  individual  with  the  exercise  thereof,  should  always 
be  subject  to  withdrawal  at  the  pleasure  of  the  government 
which  exempts  or  which  invests.  This  is,  at  least,  the  dictum 
of  sound  political  science,  though  our  public  law  does  not  yet 
fully  correspond  thereto.  Our  public  law  exaggerates  private 
rights  upon  this  point. 

The  power  of  the  United  States  government  to  defend  the 
domain  of  contractual  obligation  against  impairment  by  com- 
monwealth law  might,  however,  be  made  nugatory  in  many 
cases,  if  the  principle  that  the  United  States  has  no  common 
law,  within  the  commonwealths,  should  be  adhered  to.  That 
principle,  strictly  applied,  would  require  that,  when  the  con- 
tract relates  to  a  matter  subject  to  the  exclusive  jurisdiction 
of  the  commonwealth,  the  United  States  courts  should  follow 
the  decisions  of  the  highest  courts  of  the  commonwealth  in 
interpreting  the  question  both  of  the  obligation  and  the 
impairment.  This,  however,  the  Supreme  Court  has  abso- 
lutely and  expressly  refused  to  do.1  It  has  asserted  its  inde- 
pendent power  to  interpret  for  itself  the  law  of  the  common- 
wealth in  reference  to  contracts  and  to  determine  for  itself 
the  question  of  impairment.  This  is  certainly  sound  juris- 
prudence. Let  it  only  be  so  expanded  in  application  as  to 
break  down  the  old  and,  now  certainly  erroneous,  principle 
that  the  United  States  has  no  common  law  within  the  com- 
monwealths.2 

The  constitution  itself,  however,  interposes  a  technical  dif- 
ficulty in  the  way  of  an  individual  attempting  to  hold  a  com- 
monwealth by  the  obligation  of  its  contract  with  him.  The 
well-known  eleventh  article  of  the  amendments  provides  that 
"the  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  "  (commonwealths) 

1  The  Jefferson  Branch  Bank  v.  Skelley,  U.  S.  Reports,  1  Black,  406. 

2  Political  Science  Quarterly,  vol.  3,  no.  1,  p.  136  ff. 


hi  the  Constitution  of  the  United  States.       241 

"  by  citizens  of  another  State  "  (commonwealth)  "  or  by  citizens 
or  subjects  of  any  foreign  state."  This  provision  has  been 
interpreted  as  applying  also  to  the  case  of  a  suit  against  a 
commonwealth  by  a  citizen  thereof.1 

The  Supreme  Court  of  the  United  States  has,  however, 
shown  a  most  wise  and  commendable  spirit  in  the  interpre- 
tation of  this  limitation  upon  individual  rights.  It  has 
assumed  jurisdiction  in  behalf  of  the  individual,  wherever 
this  could  be  accomplished  without  making  the  common- 
wealth the  original  and  direct  defendant  in  the  suit.  For 
example,  it  has  decided  that,  if  the  commonwealth  begins 
the  suit,  the  individual  may  always  appeal  to  the  United 
States  courts  without  being  regarded  as  the  prosecutor;2 
that  where  property  of  the  commonwealth,  or  property  in 
which  the  commonwealth  has  an  interest,  comes  before 
the  Court  and  under  its  control,  in  the  regular  course  of 
judicial  administration,  without  being  forcibly  taken  from 
the  possession  of  the  commonwealth,  the  Court  will  pro- 
ceed to  discharge  its  duty,  in  behalf  of  the  individual  party, 
in  regard  to  that  property;3  that  an  individual  may  bring 
an  action  in  tort  against  an  officer  of  the  commonwealth,  and 
that  said  officer  cannot  oust  the  jurisdiction  of  the  Court  by 
merely  proving  himself  to  be  an  officer  and  asserting  his  offi- 
cial authority  to  do  the  act  complained  of,  but  must  prove 
that  his  authority  is  sufficient  in  law  to  protect  him  ; 4  that  an 
individual  may  bring  suit  against  an  officer  of  a  commonwealth 
to  compel  him  to  perform  a  well-defined  duty,  imposed  upon 
him  by  law,  in  regard  to  a  specific  matter,  in  the  performance 
of  which  the  individual  may  have  a  distinct  interest  capable 
of  enforcement  by  judicial  process;5  and  that  an  individual 

1  Cooley,  Principles  of  Constitutional  Law,  p.  1 1 8. 

2  Cohens  v.  Virginia,  U.  S.  Reports,  6  Wheaton,  264. 
8  Clark  v.  Barnard,  108  U.  S.  Reports,  436. 

*  U.  States  v.  Lee,  106  U.  S.  Reports,  196. 
6  U.  States  v.  Schurz,  102  U.  S.  Reports,  378. 


242  Civil  Liberty 

may  bring  suit  against  an  official  of  a  commonwealth  to  pre- 
vent him  from  violating  his  official  duty  to  the  injury  of  the 
plaintiff,  when  "adequate  compensation  for  the  injury  cannot 
be  had  at  law."  1  In  the  recent  case  of  Poindexter  v.  Green- 
how,2  the  Court  introduced  distinctions  in  behalf  of  individual 
rights  so  refined  as  to  be  almost  fanciful.  This  was  an  action 
in  detinue  brought  by  an  individual  against  an  officer  of  the 
commonwealth  of  Virginia  to  recover  possession  of  property 
seized  by  the  officer  in  payment  of  taxes.  The  individual  had 
tendered  to  the  officer  coupons  of  Virginia  bonds  made  receiv- 
able by  an  act  of  the  commonwealth  for  taxes.  The  com- 
monwealth had  by  a  subsequent  act  ordered  the  collection  of 
all  taxes  in  gold,  silver,  United  States  treasury  notes,  national 
bank  currency,  and  nothing  else.  The  officer  made  defend- 
ant in  this  suit  sought,  therefore,  to  oust  the  jurisdiction  of 
the  Court  by  making  the  suit  appear  to  be  directed  against 
the  commonwealth  itself,  but  the  Court  said  that  the  com- 
monwealth "is  a  political,  corporate  body,  can  act  only  through 
agents,  and  can  command  only  by  laws.  It  is  necessary,  there- 
fore, for  such  a  defendant,  in  order  to  complete  his  defense, 
to  produce  a  law  of  the  State"  (commonwealth)  "which  con- 
stitutes his  commission  as  its  agent,  and  a  warrant  for  his  act. 
This  the  defendant,  in  the  present  case,  undertook  to  do.  He 
relied  on  the  act  of  January  26,  1882,  requiring  him  to  collect 
taxes  in  gold,  silver,  United  States  treasury  notes,  national 
bank  currency,  and  nothing  else,  and  thus  forbidding  his 
receipt  of  coupons  in  lieu  of  money.  That,  it  is  true,  is  a 
legislative  act  of  the  government  of  Virginia,  but  it  is  not  a 
law  of  the  State"  (commonwealth)  "of  Virginia.  The  State" 
(commonwealth)  "  has  passed  no  such  law,  for  it  cannot ;  and 
what  it  cannot  do,  it  certainly,  in  contemplation  of  law,  has 
not  done.     The  constitution  of  the  United  States,  and  its 

1  Davis  v.  Gray,  U.  S.  Reports,  16  Wallace,  203.      Board  of  Liquidation  v. 
McComb,  92  U.  S.  Reports,  531. 

2  114  U.  S.  Reports,  270. 


In  the  Constitution  of  the  United  States.       243 

own  contract,  both  irrepealable  by  any  act  on  its  part,  are  the 
law  of  Virginia  ;  and  that  law  made  it  the  duty  of  the  defendant 
to  receive  the  coupons  tendered  in  payment  of  taxes,  and 
declared  every  step  to  enforce  the  tax,  thereafter  taken,  to  be 
without  warrant  of  law,  and  therefore  a  wrong.  He  stands, 
then,  stripped  of  his  official  character ;  and  confessing  a  per- 
sonal violation  of  the  plaintiff's  rights  for  which  he  must  per- 
sonally answer,  he  is  without  defense."  This  reasoning  seems 
sophistical  in  several  respects.  For  example,  the  distinction 
between  the  commonwealth  as  state  and  the  commonwealth 
as  government  is  impossible,  since  the  commonwealth  is  not 
state,  i.e.  sovereignty,  at  all,  but  only  government.  Again, 
the  dictum  that  an  act  of  the  commonwealth  legislature,  not 
repugnant  to  the  constitution  of  the  commonwealth,  is  not 
law  of  the  commonwealth,  if  it  conflicts  with  a  provision  of 
the  constitution  of  the  United  States,  but  that  the  latter  is  the 
law  of  the  commonwealth,  seems  to  me  an  extraordinary  confu- 
sion of  prepositions  and  an  absurd  statement  of  propositions. 
The  constitution  of  the  United  States  is  the  law  of  the 
United  States  within  the  commonwealth,  not  the  law  of  the 
commonwealth,  and  an  officer  of  the  commonwealth  is  bound 
to  obey  and  execute  the  law  of  the,  commonwealth  until  it  has 
been  decided  by  the  courts  to  be  abrogated  by  the  law  of  the 
United  States  within  the  commonwealth.  The  officer  of  the 
commonwealth  cannot,  therefore,  in  such  a  case,  be  personally 
responsible  as  a  wrong  doer.  His  act  is  the  act  of  the  com- 
monwealth. Notwithstanding  the  fact  that  I  consider  this 
reasoning  to  be  erroneous,  I  approve  the  spirit  of  the  Court 
which  prompts  it  to  the  invention  of  such  fictions  in  order 
to  uphold  the  property  rights  of  individuals  against  the  too 
often  manifested  dishonesty  of  the  commonwealths.  I  should 
prefer  to  see  the  eleventh  amendment  abolished ;  but  if  this 
cannot  be,  I  shall  not  regret  to  see  it  perforated  by  legal 
fictions. 

5.    The  commonwealths  are  inhibited  from  depriving  any 


244  Civil  Liberty 

person  of  property  without  due  process  of  law,  and  from 
making  or  enforcing  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States  as  to 
property.1  That  is,  in  all  the  acts  of  a  commonwealth, 
when  dealing  with  the  property  of  individuals  through  the 
exercise  of  the  powers  of  taxation  and  of  eminent  domain  and 
through  the  procedures  of  its  courts,  due  process  must  be 
followed,  and  none  of  the  property  privileges  and  immunities 
of  United  States  citizenship  may  be  encroached  upon  at  all. 
I  have  explained  these  terms  and  phrases  under  the  division 
of  personal  immunities ;  and  I  have  there  also  pointed  out 
the  means  for  vindicating  all  immunities  guaranteed  by  the 
constitution  of  the  United  States  against  the  possible  at- 
tempts of  the  commonwealths  to  violate  them.  I  will  there- 
fore not  occupy  space  with  repetition  of  the  same  in  this 
connection. 

6.  Lastly,  the  commonwealths  are  of  course  inhibited  from 
exercising  their  powers  over  individuals  in  regard  to  mat- 
ters placed  by  the  constitution  under  the  exclusive  control 
of  the  general  government,  such  as  the  waging  of  offensive 
war,  the  making  of  treaties  and  alliances,  the  conducting  of 
diplomatic  relations,  the  regulation  of  commerce  with  foreign 
states  and  between  the  commonwealths,  the  fixing  of  the 
monetary  system,  the  military  system,  the  patent  and  copy- 
right systems,  and  the  system  of  naturalization.  The  indi- 
vidual is  exempted  by  the  constitution  from  the  powers  of 
the  commonwealths  in  this  entire  domain  of  the  exclusive 
jurisdiction  of  the  central  government,  and  may  always  call 
upon  the  United  States  judiciary  to  relieve  him  from  injuries 
resulting  from  any  attempts  of  the  commonwealths  to  intrude 
upon  this  domain. 

Such  is  the  sphere,  the  content  and  the  guaranty  of  civil 
liberty  in  our  constitutional  law.     It  must  be  confessed  that 

1  Constitution,  Amendment  XIV,  sec.  I. 


In  the  Constitution  of  the  United  States.       245 

its  boundaries  are  ragged  and  that  its  protection  is,  in  many- 
respects,  incomplete,  but  it  is  the  best  which  the  world  has 
yet  devised,  and  it  contains  in  it  the  principle  and  the  process 
for  a  far  more  perfect  development. 

C.    The  Suspension  of  the  Immunities. 

In  the  foregoing  pages  I  have  endeavored  to  present  the 
system  of  individual  liberty,  both  as  to  content  and  sanction, 
as  clearly  and  distinctly  as  the  existing  status  permits.  There 
is,  however,  another  most  important  question  to  be  consid- 
ered before  we  can  dismiss  this  great  subject.  It  is  the 
inquiry  as  to  whether  there  is  any  contingency  under  which 
the  central  government  may  temporarily  suspend  the  consti- 
tutional guaranties  of  individual  liberty  and  rule  absolutely  ;  i.e. 
assume  the  whole  power  of  the  state,  the  sovereignty. 

From  the  standpoint  of  political  science  we  should  be 
obliged  to  answer  this  inquiry  in  the  affirmative.  In  time 
of  war  and  public  danger,  when  the  life  of  the  state  is  threat- 
ened, the  government  must  have  command  of  every  element 
of  power  for  its  defense.  This  has  been  the  experience  of 
all  states.  I  will  not  cite  the  example  of  the  great  Roman 
state,  because  the  objection  may  be  made  that  it  is  anti- 
Teutonic.  Neither  will  I  rely  wholly  upon  the  experience 
of  the  Teutonic  states,  formed  out  of  the  amalgamation  of 
Teutonic  and  Roman  ideas,  lest  it  may  again  be  said  that 
this  element  of  their  constitutions  was  drawn  from  a  Roman 
source.  I  will  take  the  pure  Germanic  state,  as  described  by 
Caesar.1  He  tells  us  that  in  time  of  war  a  dux  was  chosen, 
and  invested  with  power  over  life  and  death.  Tacitus  does 
not  put  it  so  strongly.  He  says  the  dukes  led  rather  by 
their  influence  and  example  than  by  their  power.2  However 
that  may  be,  the  fact  is  well  established  that,  in  time  of  war 
and  migration,  the  ancient  liberty-loving  Germans  followed 
the  custom  of  suspending  government  by  the  assemblies  of 

1  De  bello  Gallico,  VI,  23.  2  Germania,  c.  7. 


246  Civil  Liberty 

the  freemen,  and  of  living  under  the  more  or  less  complete 
dictatorship  of  the  duke.  From  the  earliest  period  of  Ger- 
manic history  to  the  formation  of  the  constitution  of  the 
United  States,  the  system  of  every  Teutonic  state  has  admit- 
ted the  temporary  dictatorship,  when  the  necessities  of  war 
and  public  danger  require  its  existence  and  activity.  Does 
now  the  constitution  of  the  United  States  contain  any  such 
provision  ?  or  were  our  forefathers  able  to  invent  any  other 
means,  less  dangerous  to  individual  liberty,  for  the  preserva- 
tion of  the  life  of  the  state  in  periods  of  mortal  peril  ? 

The  clauses  of  the  constitution  bearing  upon  this  question 
are  contained  in  sections  8  and  9,  of  Article  I,  and  in  sec- 
tion 2,  of  Article  II.  They  read  :  "The  Congress  shall  have 
power  to  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United  States ;  to  provide 
for  calling  forth  the  militia  to  execute  the  laws  of  the  Union, 
suppress  insurrections,  and  repel  invasions ;  to  raise  and 
support  armies  ;  to  provide  and  maintain  a  navy  ;  to  make 
rules  for  the  government  and  regulation  of  the  land  and 
naval  forces.  The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when  in  cases  of  rebellion 
or  invasion  the  public  safety  may  require  it.  The  President 
shall  be  commander-in-chief  of  the  army  and  navy  of  the 
United  States,  and  of  the  militia  of  the  several  States " 
(commonwealths),  "when  called  into  the  actual  service  of  the 
United  States." 

It  is  very  evident  that  Congress  has  the  power  to  ordain 
universal  military  duty  in  the  United  States,  and  provide  for 
calling  the  entire  population  into  the  service  of  the  United 
States,  after  which  the  e'ntire  population  would  be  made  sub- 
ject to  the  rules  and  regulations  governing  the  army  and 
navy,  which  Congress  may  fashion  at  pleasure,  without  regard 
to  the  system  of  civil  liberty.  This  would  indeed  be  an 
extraordinary  procedure,  but  its  constitutionality  could  not 


In  the  Constitution  of  the  United  States.       247 

be  doubted.  The  constitution  places  no  limitation  upon  the 
power  of  the  Congress  in  the  construction  and  the  govern- 
ment of  the  military  system.  The  whole  power  of  the  state 
is  certainly  vested  in  the  government  upon  this  point. 

But  the  question  which  we  have  propounded  is  a  more  diffi- 
cult one  than  this.  It  is  whether,  in  the  absence  of  any  acts 
of  Congress  bringing  the  whole  population  of  the  United  States 
into  its  military  service,  there  is  any  exigency  under  which 
the  government  may  suspend  the  guaranties  of  civil  liberty 
as  to  persons  not  within  that  service.  This  question  has 
received  both  a  practical  and  a  judicial  answer  in  our  history, 
and  the  one  contradicts  in  some  respects  the  other.  I  will 
not  go  farther  back  in  our  experience  than  the  great  civil 
war,  since  the  precedents  set  before  that  period  are  incom- 
plete and  indistinct.  Neither  will  I,  at  this  point,  undertake 
to  make  any  distinction  between  the  different  departments 
of  the  government  in  respect  to  the  extraordinary  powers  of 
war.  The  question  at  this  juncture  is  as  to  the  powers  of  the 
whole  government  over  against  individual  liberty. 

1.  The  practical  answer.  On  the  19th  of  April,  1861,  the 
President  of  the  United  States  issued  a  proclamation,  declar- 
ing the  ports  of  South  Carolina,  Georgia,  Alabama,  Florida, 
Mississippi,  Louisiana,  and  Texas  in  a  state  of  blockade.1 
That  is,  the  President  declared  that  civil  war  existed.  There 
is  no  question  that  the  government  of  the  United  States  may 
declare  war  or  the  existence  of  war.  The  only  question  is 
whether  the  Congress  or  the  President  is  vested  with  the 
power,  and,  as  I  have  said,  that  question  is  not  at  issue  under 
this  topic  of  our  treatise. 

On  the  10th  of  May,  1861,  the  President  of  the  United 
States  issued  a  proclamation  suspending  the  writ  of  habeas 
corpus  in  certain  islands  upon  the  coast  of  Florida.2  In 
his  message  of  July  4,    1861,   the    President    informed   the 

1  United  States  Statutes  at  Large,  vol.  12,  p.  1258. 

2  Ibid.  vol.  1 2,  p.  1 260. 


248  Civil  Liberty 

Congress  that  he  had  authorized  the  commanding  general  to 
suspend  the  writ  of  habeas  corpus,  without  limitation  as  to 
place.1  There  is  no  question  that  the  central  government 
may  suspend  the  writ  of  habeas  corpus,  when  it  deems  the  act 
necessary  to  the  public  safety.  The  only  questions  in  regard 
to  the  subject  are  whether  the  Congress  or  the  President  is 
vested  with  this  power,  and  whether  the  suspension  intro- 
duces the  reign  of  martial  law,  or  simply  authorizes  detention 
without  remedy.  The  first  question  is  not  at  issue  under  this 
topic.  I  will  simply  say  at  this  point  that  the  Congress  fully 
indemnified  the  President  by  the  law  of  March  3,  1863,  de- 
claring the  President  authorized  "to  suspend  the  privilege 
of  the  writ  of  habeas  corpus  in  any  case  throughout  the  United 
States,  or  any  part  thereof."  2 

As  to  the  second  question,  I  will  only  say  that  the  govern- 
ment, though  inclined  to  interpret  the  suspension  of  the 
privilege  of  habeas  corpus  as  the  introduction  of  martial  law, 
i.e.  as  the  suspension  of  all  the  constitutional  guaranties  of 
individual  liberty,3  rested  also  upon  its  power  to  make  war 
and  regulate  the  results  thereof,  in  proclaiming  the  reign  of 
martial  law.4  The  fact  is,  then,  that  the  government  did 
assert  and  exercise  the  power  to  introduce  martial  law 
throughout  the  whole  United  States,  both  upon  the  imme- 
diate theatre  of  the  conflict,  and  at  points  territorially  far 
removed  from  it.5 

2.  The  judicial  answer.  This  was  finally  reached,  for  the 
first  time,  after  the  close  of  the  civil  war,  in  the  famous 
Milligan  case.6  The  Court  decided,  in  the  first  place,  that 
"  the  suspension  of  the  writ  does  not  authorize  the  arrest  of 
any  one,  but  simply  denies  to  one  arrested  the  privilege  of 

1  McPherson,  History  of  the  Rebellion,  p.  126. 

2  United  States  Statutes  at  Large,  vol.  12,  p.  755. 
8  Ibid.  vol.  12,  p.  1260. 

4  Dunning,  Political  Science  Quarterly,  vol.  I,  no.  2,  p.  187. 

6  Ibid.  p.  191. 

6  U.  S.  Reports,  4  Waiiace,  2. 


In  the  Constitution  of  the  United  States.       249 

this  writ  in  order  to  obtain  his  liberty."  That  is,  the  Court 
held  that  the  suspension  of  the  writ  does  not  work  the 
introduction  of  martial  law  generally,  does  not  suspend  all 
the  constitutional  guaranties  of  individual  liberty,  but  sim- 
ply authorizes  detention  of  the  person  once  legally  arrested, 
simply  prevents  the  arrested  person  from  being  brought  be- 
fore a  regular  judge  for  the  purpose  of  having  the  question 
of  his  further  detention  determined  by  the  judge.  The 
constitutional  forms  of  arrest  and  trial  are  still  preserved. 
The  Court  decided  in  the  second  place,  however,  that  there 
are  occasions  upon  which  the  government  can  establish  mar- 
tial law,  i.e.  suspend  all  the  constitutional  guaranties  of 
individual  liberty.  It  holds  that  "if,  in  foreign  invasion  or 
civil  war,  the  courts  are  actually  closed,  and  it  is  impossible 
to  administer  criminal  justice  according  to  law,  then,  on  the 
theatre  of  active  military  operations,  where  war  really  pre- 
vails, there  is  a  necessity  to  furnish  a  substitute  for  the  civil 
authority  thus  overthrown,  to  preserve  the  safety  of  the  army 
and  society ;  and  as  no  power  is  left  but  the  military,  it  is 
allowed  to  govern  by  martial  rule  until  the  laws  can  have 
their  free  course.  As  necessity  creates  the  rule,  so  it  limits 
its  duration ;  for  if  this  government  is  continued  after  the 
courts  are  re-instated,  it  is  a  gross  usurpation  of  power. 
Martial  law  can  never  exist  where  the  courts  are  open,  and 
in  the  proper  and  unobstructed  exercise  of  their  jurisdiction. 
It  is  also  confined  to  the  locality  of  actual  war.  Because 
during  the  late  Rebellion  it  could  have  been  enforced  in 
Virginia,  where  the  national  authority  was  overturned  and 
the  courts  driven  out,  it  does  not  follow  that  it  should  obtain 
in  Indiana,  where  that  authority  was  never  disputed,  and 
justice  was  always  administered.  And  so,  in  the  case  of  a 
foreign  invasion,  martial  rule  may  become  a  necessity  in  one 
State"  (commonwealth),  "when  in  another  it  would  be  mere 
lawless  violence." 

In  fewer  words,  the  Court  holds  that  the  government  has 


250  Civil  Liberty 

the  power,  in  time  of  war,  to  introduce  martial  law  as  conse- 
quence of  its  power  to  make  war,  but  that  the  government 
cannot  extend  the  reign  of  martial  law  to  places  "where  the 
courts  are  open,  and  in  the  proper  and  unobstructed  exercise 
of  their  jurisdiction,"  and  cannot  protract  the  reign  of  mar- 
tial law,  once  rightfully  established,  beyond  the  moment  when 
the  courts  shall  have  been  re-instated.  It  seems  to  me  that 
this  is  a  claim  on  the  part  of  the  Court  that  the  judiciary 
shall  determine  when  and  where  war  exists.  It  is  even  more 
than  this.  It  is  a  claim,  not  that  the  judiciary  as  a  single 
body,  not  that  the  Supreme  Court  alone,  but  that  each  judge 
—  or,  at  least,  each  United  States  judge,  has  this  power.  I 
cannot  find  the  warrant  for  this  proposition  anywhere  in  the 
constitution,  and  it  is  certainly  very  bad  political  science.  It 
would  place  in  the  hands  of  a  relatively  insignificant  and 
irresponsible  official  the  power  of  life  and  death  over  the 
state,  in  times  of  its  greatest  peril.  War  is  the  solution  of 
a  question  by  force  ;  and  this  proposition  would  introduce 
into  the  process,  at  its  most  critical  point,  the  pettiest  kind 
of  legalism.  Scientifically,  the  view  is  weak  and  narrow ; 
practically,  it  cannot  be  realized.  The  commander  has  only 
to  close  the  court-room,  and  place  a  guard  at  the  door,  and 
this  criterion  of  war  or  peace  will  be  made  to  conform  to 
the  determinations  of  power. 

Political  science  would  confer,  and,  as  it  appears  to  me,  the 
constitution  does  confer,  the  power  of  determining  when  and 
where  war  exists  upon  those  bodies  who  represent  the  whole 
United  States,  who  wield  the  power  of  the  United  States, 
and  upon  whom  the  constitution  casts  the  responsibility  of 
the  public  defence  against  both  the  foreign  and  the  domestic 
foe.  The  opinion  of  the  Court,  which  has  fixed  the  other 
view  as  the  law  of  our  system,  was  delivered  by  Mr.  Justice 
Davis,  and  concurred  in  by  but  a  bare  majority.  Chief 
Justice  Chase,  on  the  other  hand,  delivered  a  vigorous  dis- 
sent from  the  opinion,  and  was  sustained  therein  by  Justices 


In  the  Constitution  of  the  United  States.       251 

Wayne,  Swayne  and  Miller.  The  Chief  Justice  said  :  "When 
the  nation  is  involved  in  war,  and  some  portions  of  the 
country  are  invaded,  and  all  are  exposed  to  invasion,  it  is 
within  the  power  of  Congress  to  determine  in  what  States  " 
(commonwealths)  "  or  districts  such  great  and  imminent  pub- 
lic danger  exists,  as  justifies  the  authorization  of  military 
tribunals  for  the  trial  of  crimes  and  offences  against  the  dis- 
cipline or  security  of  the  army,  or  against  the  public  safety." 
Again  :  martial  law  may  be  "  called  into  action  by  Congress, 
or  temporarily,  when  the  action  of  Congress  cannot  be 
invited,  and  in  the  case  of  justifying  or  excusing  peril,  by 
the  President,  in  times  of  insurrection  or  invasion,  or  of  civil 
or  foreign  war,  within  districts  or  localities  where  ordinary 
law  no  longer  adequately  secures  public  safety  and  private 
rights."  And  again:  "The  fact  that  the  Federal  Courts 
were  open  could  not  deprive  Congress  of  the  right  to  exer- 
cise "  martial  law.  "These  courts  might  be  open  and  undis- 
turbed in  the  exercise  of  their  functions,  and  yet  wholly 
incompetent  to  avert  threatened  danger,  or  to  punish  with 
adequate  promptitude  and  certainty  the  guilty  conspirators. 
...  In  times  of  rebellion  and  civil  war  it  may  often  happen, 
indeed,  that  judges  and  marshals  will  be  in  active  sympathy 
with  the  rebels,  and  courts  their  most  efficient  allies.  .  .  . 
We  are  unwilling  to  give  our  assent  by  silence  to  expressions 
of  opinion  which  seem  to  us  calculated,  though  not  intended, 
to  cripple  the  constitutional  powers  of  the  government,  and 
to  augment  the  public  dangers  in  times  of  invasion  and 
rebellion." 

This  is  undoubtedly  the  sound  view.  It  is  the  only  view 
which  can  reconcile  jurisprudence  with  political  science,  law 
with  policy,  upon  this  subject. 

It  is  devoutly  to  be  hoped  that  the  decision  of  the  Court 
may  never  be  subjected  to  the  strain  of  actual  war.  If,  how- 
ever, it  should  be,  we  may  safely  predict  that  it  will  necessarily 
be  disregarded.     In  time  of  war  and  public  danger  the  whole 


252  Civil  Liberty 

power  of  the  state  must  be  vested  in  the  general  government, 
and  the  constitutional  liberty  of  the  individual  must  be  sacri- 
ficed so  far  as  the  government  finds  it  necessary  for  the  pre- 
servation of  the  life  and  security  of  the  state.  This  is  the 
experience  of  political  history  and  the  principle  of  political 
science. 


In  the  German  Imperial  Constitution.        253 


CHAPTER   III. 

CIVIL     LIBERTY     AS     PROVIDED      IN     THE      GERMAN      IMPERIAL 
CONSTITUTION. 

A.  The  Immunities  of  the  Individual  against  the  Powers 
of  the  General  Government. 

There  are  no  express  exemptions  contained  in  this  consti- 
tution in  behalf  of  the  individual  against  the  powers  of  the 
general  government.  The  principle,  however,  that  the  gen- 
eral government  is  a  government  of  enumerated  powers,  leads 
us  to  the  conclusion  that  the  individual  is  exempt  from  the 
exercise  of  any  powers  over  him  by  that  government  impli- 
edly denied  to  it  by  not  being  conferred  upon  it  in  the  consti- 
tution, or  expressly  or  impliedly  reserved  by  the  constitution 
to  the  exclusive  jurisdiction  of  the  commonwealths.  For 
example,  in  the  realm  of  civil  liberty  : 

1.  The  fact  that  the  constitution  fixes  the  period  of  active 
military  service  and  vests  no  power  in  the  government  to 
change  the  same  must  be  construed  to  create  an  exemption 
from  the  power  of  the  government  to  demand,  under  ordi- 
nary circumstances,  any  longer  period  of  service  from  the 
individual.1 

2.  The  fact  that  the  constitution  confers  upon  the  general 
government  the  power  of  taxing  imports  and  exports  and  the 
home  production  of  salt,  tobacco,  distilled  liquors,  beer,  sugar, 
and  syrup,  and  makes  mention  of  no  other  subjects  of  taxa- 
tion, must  be  construed  as  exempting  the  individual  from  the 
power  of  this  government  to  tax  any  other  species  of  property 
in  his  hands.     In  Bavaria,  Wurttemberg  and  Baden  the  im- 

1  Reichsverfassung,  Art.  59. 


254  Civil  Liberty 

munity  is  still  wider.  Distilled  liquors  and  beer  are  not  sub- 
ject to  the  tax  power  of  the  general  government  in  these 
commonwealths.1  The  fact  also  that  the  power  to  levy  these 
taxes  is  conferred  upon  the  legislative  department  of  the 
government,  implies  an  immunity  of  the  individual  from  the 
power  of  the  government  to  tax  him  in  any  other  manner 
than  by  legislation.2 

3.  The  fact  that  the  constitution  confers  no  power  upon 
the  general  government  to  restrict  the  freedom  of  conscience 
must  be  construed  as  creating  an  immunity  for  the  individual 
in  this  domain  against  that  government. 

These  three  examples  constitute  in  substance  the  extent 
of  the  immunity  against  the  central  government.  It  may, 
if  it  will,  intrude  at  about  every  other  point  by  legislation 
and  administration.  Neither  has  the  constitution  created  any 
judicial  body  to  defend  this  narrow  domain  against  the  impe- 
rial legislature  and  executive.  The  constitution  regards  the 
imperial  legislature  as  the  chief  creator  and  supporter  of  civil 
liberty,  and  casts  upon  it  the  most  wide-reaching  powers  and 
responsibilities  in  this  sphere ;  but,  after  all,  this  can  produce 
only  a  statutory  liberty  which  can,  at  any  moment,  be  modified 
or  destroyed  by  a  legislative  act,  while  we  are  seeking  a  con- 
stitutional liberty,  and  a  constitutional  guarantor  of  its  main- 
tenance which  is  not  swayed  by  popular  passion  nor  by  a 
despotic  will. 

In  the  imperial  territory  of  Alsace-Lorraine  there  exists  no 
constitutional  immunity,  either  express  or  implied,  for  the 
individual  against  the  powers  of  the  general  government.3 

B.  The  Immunities  of  the  Individual  against  the  Common- 
wealths. 

Upon  this  side  the  constitution  is  somewhat  more  gener- 
ous in  the  exemption  of  the  individual  from  the  powers  of 
government. 

1  Reichsverfassung,  Art.  35.  2  Ibid.  Art.  4,  sec.  2,  and  Art.  69. 

8  Schulze,  Lehrbuch  des  deutschen  Staatsrechtes,  Zweites  Buch,  S.  365. 


In  the  German  Imperial  Constitution.         255 

1.  The  constitution  creates  a  common  citizenship,  in  the 
sense  that  a  citizen  or  subject  of  any  commonwealth  of  the 
Empire  shall  be  dealt  with  as  a  citizen  or  subject  in  every 
other ;  i.e.  he  shall  have  the  equal  protection  of  the  laws, 
shall  be  equal  before  the  courts  in  the  seeking  of  justice  and 
the  suffering  of  prosecution,  shall  have  the  equal  right  to 
acquire  a  residence,  pursue  any  business,  purchase  and  sell 
real  estate,  attain  to  citizenship  and  to  the  enjoyment  of  all 
civil  rights  with  the  citizens  or  subjects  of  the  commonwealth 
into  which  he  may  go,  and  shall  be  in  nowise  restricted  in 
the  exercise  of  these  rights  and  privileges  either  by  the  com- 
monwealth in  which  he  resides  or  any  other,  except  in  so  far 
as  reasonable  regulations  in  respect  to  communal  member- 
ship may  require.1 

This  is  not  to  be  understood  as  the  creation  of  an  imperial 
citizenship  antecedent  to  and  separate  from  citizenship  in  a 
commonwealth.  Whether  there  be  any  such  imperial  citizen- 
ship is  doubtful.  The  commentators  rather  pronounce  against 
it.2  I  think  myself  that  there  is  ;  but  it  cannot  be  derived 
from  this  article  of  the  constitution.  It  is  to  be  drawn  from 
the  whole  spirit  and  nature  of  the  constitution.  This  article 
only  requires  that  no  discrimination  shall  be  made  as  to  civil 
rights  and  privileges  by  a  commonwealth  of  the  Empire  be- 
tween its  own  citizens  or  subjects  and  those  of  another  com- 
monwealth.3 This  provision  abolishes  all  existing  discrimi- 
nations of  this  nature,  and  makes  the  creation  of  any  such 
discriminations  in  the  future  unconstitutional.  It  establishes 
equality  in  the  domain  of  civil  liberty  in  each  commonwealth 
for  every  citizen  and  subject  of  the  Empire;  but  it  does  not 
imperialize,  nationalize,  this  domain.  So  far  as  this  article  is 
concerned,  the  commonwealth  might  refuse  to  recognize  any 

1  Reichsverfassung,  Art.  3. 

2  Schulze,  Lehrbuch  des  deutschen  Staatsrechtes,  Zweites  Buch,  SS.  24,  26; 
Laband,  Das  Staatsrecht  des  deutschen  Reichs,  S.  29;   Marquardsen's  Handbuch, 

8  Schulze,  Lehrbuch  des  deutschen  Staatsrechtes,  Zweites  Buch,  S.  25. 


256  Civil  Liberty 

civil  liberty,  provided  only  it  were  as  tyrannic  over  its  own 
citizens  as  over  those  of  other  commonwealths. 

This  is  simply  the  old  provision  of  article  fourth,  section 
second,  of  the  constitution  of  the  United  States,  that  "  the 
citizens  of  each  State"  (commonwealth)  "shall  be  entitled  to 
all  privileges  and  immunities  of  citizens  in  the  several  States  " 
(commonwealths).  It  was  fashioned  from  this  provision.1 
It  was  discovered  and  demonstrated  in  the  constitutional 
assembly  of  1867  that  this  provision  would  not  secure  the 
civil  liberty  throughout  the  German  state  which  that  body 
intended  to  establish.2  The  difficulty  was  solved  not  by  fixing 
the  immunities  and  privileges  of  citizenship  in  the  consti- 
tution, but  by  vesting  the  legislature  of  the  general  govern- 
ment with  the  power  to  deal  with  all  these  subjects  by 
statutory  provisions.  Sections  1-6,  13,  15  and  16  of  the 
fourth  article  of  the  constitution  vest  in  the  legislature  of 
the  Empire  the  power  to  nationalize  civil  liberty  at  about 
every  point.  The  legislature  has  already  made  very  large 
use  of  this  power,3  the  result  of  which  is  to  make  the  prin- 
ciple of  the  third  article,  in  great  degree,  unnecessary. 

The  citizenship  of  the  Empire  as  thus  established,  with  its 
immunities  and  privileges,  is  statutory,  while,  as  I  have  ex- 
plained before,  we  are  seeking  a  constitutional  civil  liberty 
and  have  in  this  treatise  nothing  to  do  with  that  which  is 
merely  statutory.  So  long  as  the  individual  is  at  the  mercy 
of  any  part  of  the  government,  we  are  still,  as  to  principle, 
within  the  system  of  absolutism,  although  the  government 
may  be  never  so  liberal  and  benevolent. 

2.  The  constitution  expressly  exempts  the  individual  from 
the  power  of  the  commonwealths  to  impose  upon  him  any  tax 
on  account  of  commerce  and  trade  between  the  common- 
wealths.4 

1  Schulze,  Lehrbuch  des  deutschen  Staatsrechts,  Zweites  Buch,  S.  24,  Anmer- 
kung,  1.  2  Tbid. 

8  Von  Ronne,  Das  Staatsrecht  des  deutschen  Reichs,  Bd.  I,  S.  106  ff. 
4  Reichsverfassung,  Art.  33. 


In  the  German  Imperial  Constitution.        257 

3.  The  constitution  creates  an  implied  immunity  against 
the  powers  of  the  commonwealths  in  respect  to  all  matters 
which  are  made  subject  to  the  exclusive  jurisdiction  of  the 
general  government.  The  commonwealths  are  excluded  from 
this  domain  whether  the  general  government  occupies  it  or 
not.  This  makes  the  immunity  constitutional  instead  of  stat- 
utory :  the  immunity  would  be  simply  statutory  if  the  com- 
monwealths were  authorized  to  act  in  case  of  the  inaction  of 
the  general  government.  I  find  but  one  article  of  the  con- 
stitution in  which  the  exclusive  jurisdiction  of  the  general 
government  is  expressly  declared,  viz ;  the  thirty-fifth.  In 
this  article  it  is  ordained  that  "  legislation  in  regard  to  the 
customs  system,"  i.e.  in  regard  to  foreign  commerce,  "in 
regard  to  the  taxation  of  domestic  salt,  tobacco,  distilled 
liquors,  beer,  sugar  and  syrup,  in  regard  to  securing  just  col- 
lections and  returns  of  these  excises  to  the  imperial  treasury 
by  the  respective  commonwealths,  and  in  regard  to  the  meas- 
ures necessary  to  secure  the  customs  boundary  of  the  Em- 
pire, shall  be  exclusively  imperial."  By  implication,  however, 
the  exclusive  jurisdiction  of  the  general  government  reaches 
somewhat  further.  The  commonwealths  cannot  deal,  in  any 
case,  with  the  imperial  constitution,  or  with  the  imperial 
official  organization  or  relations,  or  the  army,  or  with  the 
navy,  or  the  foreign  merchant  marine.1  Consequently  when 
the  exercise  of  such  powers  would  touch  the  civil  auton- 
omy of  the  individual,  we  may  regard  the  individual  as 
possessing  a  constitutional  immunity  against  the  powers  of 
the  commonwealths  to  impose  any  restriction  or  regulation 
upon  him  in  respect  to  these  subjects.  The  general  govern- 
ment might  refrain  from  occupying  this  ground  by  any  action 
of  its  own,  and  yet  the  commonwealths  would  have  no  authority 
whatsoever  to  intrude  upon  it,  under  the  otherwise  valid  plea 
of  supplementing  the  governmental  acts  of  the  general  govern- 
ment, or  under  any  other  plea. 

1  Laband,  Das  Staatsrecht  des  deutschen  Reichs,  S.  93;   Marquardsen's  Hand- 
buch. 


258  Civil  Liberty 

4.  The  immunities  of  the  individual  against  the  common 
wealths  are  better  secured  than  those  against  the  general  gov- 
ernment. The  constitution  creates  no  independent  judicial 
power  vested  with  the  authority  to  interpret  the  constitution 
in  the  domain  of  civil  liberty  against  the  legislature  and  exec- 
utive of  the  general  government  itself.  The  judicial  power 
in  the  German  constitution  is  itself  created  by  the  legislature. 
It  is  a  statutory  body,  not  a  constitutional  body.  It  interprets 
the  acts  of  the  legislature,  but  cannot  pronounce  upon  the 
constitutionality  of  its  acts.  There  is  no  legal  defense  for 
the  constitutional  immunities  of  the  individual  against  the 
general  government,  should  the  legislature  of  that  govern- 
ment choose  to  disregard  them.  Their  violation  by  the 
executive  power  might  possibly  be  checked.  The  constitu- 
tion creates  a  responsibility  of  the  chancellor  for  every  act  of 
the  Emperor.1  It  does  not  declare  indeed  to  whom  he  is 
responsible,  and  it  does  not  provide  any  means  of  enforcing 
his  responsibility. 

Against  the  commonwealths,  on  the  other  hand,  every 
department  of  the  general  government  may  be  appealed  to  by 
the  individual.  This  is,  of  course,  to  be  inferred  from  the 
fact  that  the  violation  by  a  commonwealth  of  the  immuni- 
ties of  the  individual  against  the  commonwealth  involves  the 
violation  of  the  imperial  constitution  and  laws,  which  the  gen- 
eral government  must  uphold.  We  are  not,  however,  left 
wholly  to  inference  in  the  establishment  of  this  proposition. 
The  constitution  expressly  provides,  that  "when  justice  is 
denied  to  any  individual  within  or  by  a  commonwealth,  and  no 
relief  can  be  secured  by  ordinary  legal  process,  the  individual 
so  injured  may  appeal  to  the  Federal  Council ;  and  it  shall  be 
the  duty  of  the  Federal  Council  to  receive  the  appeal  and,  if 
it  be  well  grounded,  to  force  the  recusant  commonwealth  to 
the  performance  of  its  duty."2  Thus,  when  the  constitu- 
tional   immunities    of   the    individual    against    the    common- 

1  Reichsverfassung,  Art.  17.  Ibid.  Art.  77  &  iq. 


In  the  German  Imperial  Constitution.        259 

wealths  cannot  be  preserved  through  the  ordinary  legal 
supervision  which  the  imperial  judiciary  exercises  over  the 
commonwealth  judiciaries,  this  extraordinary  remedy  exists, 
which  is  intended  and  calculated  to  cover  every  possible 
case  not  otherwise  provided  for.1 

C.    The  Suspension  of  Civil  Liberty. 

I  have  sufficiently  explained  in  the  previous  chapter  the 
necessity,  under  certain  exigencies,  for  the  temporary  sus- 
pension of  civil  liberty  by  the  general  government,  and  for 
the  assumption  of  the  whole  power  of  the  state  by  the  gov- 
ernment. No  constitution  can  claim  completeness  which 
does  not  make  provision  for  such  exigencies,  and  which  does 
not  regulate,  so  far  as  the  nature  of  the  case  permits,  the 
manner  and  the  results  of  the  suspension,  and  the  conditions 
of  its  termination. 

The  German  constitution  vests  the  power  to  declare  war 
in  the  Emperor,  with  the  consent  of  the  Federal  Council ; 2  the 
power  to  defend  the  Empire  against  attack  in  the  Emperor ; 3 
the  power  to  wage  war  in  the  Emperor ; i  the  power  to  make 
peace  in  the  Emperor ; 5  the  power  to  supervise  the  execution 
of  the  laws  of  the  Empire  in  the  Emperor;6  and  the  power  to 
coerce  a  commonwealth  in  the  Emperor,  with  the  consent  of 
the  Federal  Council." 

We  should  be  amply  warranted  in  concluding  generally, 
from  these  provisions,  that  the  imperial  government  has  the 
constitutional  authority  to  assume  a  temporary  military  dic- 
tatorship in  time  of  war  or  great  public  danger,  and  to  deter- 
mine when  the  exigency,  justifying  the  exercise  of  dictatorial 
powers,  arises,  and  when  it  ceases  to  exist.  We  should 
conclude  specifically  also  from  these  provisions  that  the 
Emperor,  with  the  consent  of  the  Federal  Council,  determines 
when  this  exigency  arises  in  the  cases  of  offensive  war  and  in 

1  Schulze,  Lehrbuch  des  deutschen  Staatsrechtes,  Zveites  Buch,  S.  28. 

2  Reichsverfassung,  Art.  1 1,  §  2.  3  Ibid. 

*  Ibid.  Art.  63.         5  Ibid.  Art.  11,  §  1.         6  Ibid.  Art.  17.         7  Ibid.  Art.  19. 


260  Civil  Liberty 

the  coercion  of  a  commonwealth ;  that  the  Emperor  alone 
determines  when  it  arises  in  defensive  war,  or  in  the  employ- 
ment of  the  military  power  in  the  execution  of  the  laws ;  and 
that  the  Emperor  alone,  in  all  cases,  determines  when  the 
exigency  requiring  martial  law  ceases  to  exist.  The  consti- 
tution does  not,  however,  leave  us  to  inferential  conclusions. 
It  makes  explicit  declaration.  It  ordains  that  the  Emperor 
may  declare  the  state  of  siege  to  exist  in  any  part  of  the 
Empire  when  the  public  security  is  threatened.1  The  Em- 
peror may  thus  introduce  the  reign  of  martial  law,  and  he 
alone  can  determine  exactly  when  it  shall  terminate.  This 
is  distinct,  exact  and  strong.  It  places  the  dictatorship  just 
where  a  sound  science  of  government  would  advise.  It  places 
it  just  where  the  logic  of  events  will  always  finally  fix  it. 

These  last  remarks,  however,  are  a  little  aside  from  my 
purpose  at  this  point.  Here  I  am  dealing  only  with  the  rela- 
tion of  the  whole  government  to  civil  liberty.  If  the  whole 
government  may  introduce  martial  law,  then  is  my  proposi- 
tion established  that  there  are  exigencies,  upon  the  happen- 
ing of  which  the  government  may  suspend  the  whole  liberty 
of  the  individual,  and  assume  to  itself  the  whole  powers  of 
the  state  ;  and  that  the  government  is  the  sole  determiner  of 
the  question  as  to  when  these  exigencies  arise  and  when  they 
cease  to  exist. 

From  the  provisions  of  the  constitution  which  I  have  cited, 
there  can  be  no  doubt  that  the  imperial  government  has  this 
power.2  The  sixty-eighth  article,  which  expressly  confers 
this  power  upon  the  Emperor,  ordains  that,  until  an  imperial 
law  shall  be  passed,  designating  the  conditions  and  prescrib- 
ing the  form  and  the  effect  of  the  declaration  of  a  state  of 
siege  by  the  Emperor,  the  Prussian  law  of  June  4,  185 1,  shall 
be  regarded  as  the  imperial  law.     This  Prussian  law  is  still 

1  Reichsverfassung,  Art.  68. 

2  Laband,  Das  Staatsrecht  des  deutschen  Reichs,  S.  164;  Marquardsen's 
Handbuch. 


In  the  German  Imperial  Constitution.        261 

the  law  of  the  Empire.  It  designates  both  war  and  insurrec- 
tion as  the  conditions  warranting  the  declaration.  It  pro- 
vides that,  in  the  first  case,  the  commander-in-chief,  or  the 
commanding  officer  on  the  scene  of  war,  may  make  the  dec- 
laration ;  while  in  the  second  case,  the  ministry  must  make 
it.  It  further  provides  that  the  first  effect  of  the  declara- 
tion shall  be  the  suspension  of  the  constitutional  liberties 
of  the  individual.1  The  only  modification  which  this  law 
requires,  to  make  it  fit  the  machinery  of  the  general  govern- 
ment, is  the  substitution  of  the  chancellor  for  the  ministrv, 
since  there  is  no  imperial  ministry,  and  no  minister  except 
the  chancellor.  The  Emperor,  then,  as  commander-in-chief 
of  the  military  and  naval  forces,  may  immediately,  or  through 
any  of  his  military  subordinates,  declare  the  reign  of  martial 
law  in  any  part  of  the  Empire,  when  a  war  exists  which  in 
his  opinion  threatens  the  public  security  ;  and,  as  chief  of 
the  civil  administration,  he  may  make  the  like  declaration 
through  the  chancellor,  when  an  insurrection  exists  which 
in  his  opinion  threatens  the  public  security.2  From  what- 
ever point  of  view  the  subject  may  be  regarded,  there  is  no 
question  that  the  constitution  vests  in  the  general  govern- 
ment full  power  to  suspend  temporarily  the  whole  consti- 
tutional liberty  of  the  individual  and  assume  the  whole  power 
of  the  state,  and  to  determine  itself  the  existence  of  the  exi- 
gencies which  will  warrant  the  assumption,  and  the  moment 
of  their  cessation.  The  law  of  1851,  which  the  constitution 
adopts,  provides,  indeed,  that  the  suspension  can  only  be 
made  in  time  of  war  and  insurrection ;  but  when  the  imperial 
government  declares  that  there  is  war,  then  there  is  war 
legally,  and  when  it  declares  that  there  is  insurrection,  then 
there  is  insurrection  legally  ;  and  therewith  the  power  of 
the  government  becomes  constitutionally  unlimited. 

1  Preussische  Gesetz-Sammlung  fiir  1 85 1,  S.  451  ff. 

2  Von  Holtzendorff,  Rechtslexicon,  Bd.  I,  I,  S.  262.     Dritte  Auflage. 


262  Civil  Liberty. 


CHAPTER   IV. 

THE  SCIENTIFIC  POSITION  AND  THE  TRUE  RELATIONS    OF    CIVIL 
LIBERTY    IN    THE    CONSTITUTION. 

I  pass  over  the  subject  of  civil  liberty  in  the  constitutional 
law  of  England  and  France,  for  the  simple  and  entirely  con- 
vincing reason  that  there  is  none  in  either.  It  may  be  said 
that,  as  to  the  English  constitution,  this  fact  results  from  its 
unwritten  character;  but  the  constitution  of  France  is  a 
written  instrument,  and  yet  it  contains  not  a  trace  of  what 
we  call  civil  liberty.  Every  particle  of  civil  liberty  in  both 
systems  is  at  all  times  at  the  mercy  of  the  government. 
There  is  a  large  domain  of  civil  liberty  in  both  of  these 
states.  In  fact,  that  domain  is  nearly  identical  in  both,  and 
corresponds  very  nearly  with  the  same  sphere  in  the  systems 
of  the  United  States  and  of  Germany ;  but  it  was  not  created 
by  the  state  as  distinct  from  the  government,  and  it  is  not 
defended  by  the  state  against  the  government.  When  the 
English  barons  first  constituted  the  Parliament  as  the  state, 
and  enacted  Magna  Charta,  and  established  a  committee  to 
protect  its  provisions  against  the  King,  i.e.  the  government, 
there  was  then  in  England  a  constitutional  civil  liberty ;  i.e. 
a  civil  liberty  created  by  the  state  and  defended  against  the 
government.  But  when  this  baronial  Parliament,  this  organ- 
ization of  the  aristocratic  state,  became,  half  a  century  later, 
a  part  of  the  government,  then  the  sovereign,  the  state,  be- 
came merged  in  the  government,  so  far  as  civil  liberty  was 
concerned,  and  civil  liberty  lost  its  supra-governmental  source 
and  support. 

In  France,  also,  the  first  work  of  the  revolution  of  '89  was, 


The   True  Position  of  Civil  Liberty.  263 

as  we  have  seen,  the  organization  of  the  state  back  of  the 
King,  i.e.  back  of  the  government,  and  then  the  creation  of 
the  constitution,  in  which  civil  liberty  was  defined  and  secured 
against  the  government.  The  constitutional  character  of  civil 
liberty  was  preserved  in  all  the  changes  of  the  French  system, 
down  to  the  present,  except  in  the  Napoleonic  instruments. 
The  fact  that  civil  liberty  has  no  place  in  the  present  demo- 
cratic constitution  is  striking.  It  is  to  be  explained  largely, 
but  not  wholly,  upon  the  ground  of  the  fragmentary  and 
incomplete  character  of  the  constitution.  There  is  no  doubt 
that  the  French  Republic  needs  a  revision  of  its  constitu- 
tional law.  It  needs  a  constitutional  civil  liberty  and  a  more 
independent  executive  power.  It  is  to  be  confessed  and 
regretted,  however,  that  these  are  not  the  subjects  which 
seem  uppermost  and  most  important  in  the  minds  of  the 
revisionists.  There  is  another  reason,  as  I  have  indicated, 
for  the  omission  of  the  charter  of  liberties  from  the  constitu- 
tion. It  is  the  psychology  of  the  Gallic  mind,  which  con- 
fuses civil  liberty  with  political  equality,  and  which,  therefore, 
is  ready  to  confide  everything  to  a  government  proceeding 
from  universal  suffrage.  This  is  altogether  unscientific  in 
theory  and  unsatisfactory  in  practice. 

I  said,  at  the  beginning  of  this  chapter,  that  I  would  pass 
over  the  topic  of  civil  liberty  in  the  English  and  French  sys- 
tems, because  it  is  no  part  of  their  constitutional  law.  I 
might,  indeed,  present  its  principles,  as  worked  out  in  these 
systems  by  legislative  enactments,  or  by  custom  subject  to 
legislative  action,  or  both ;  but  that  would  tend  to  obscure 
the  great  fact  which  I  wish  to  keep  in  mind  :  That  upon 
this  side  of  the  Atlantic  constitutional  law  has  made  advances 
far  beyond  anything  which  has  been  accomplished  upon  the 
other  side.  A  true  and  perfect  political  science  will  require, 
as  I  have  already  pointed  out,  first,  the  organization  of  the 
state,  i.e.  the  sovereignty  back  of  the  constitution  ;  second, 
the  continued  organization  of  the  sovereignty  within  the  con- 


264  Civil  Liberty. 

stitution  ;  third,  the  tracing  out  of  the  domain  of  civil  liberty 
within  the  constitution,  by  the  sovereignty,  the  state  ;  fourth, 
the  guaranty  of  civil  liberty  ordinarily  against  every  power, 
except  the  sovereignty  organized  within  the  constitution  \ 
fifth,  provisions  for  the  temporary  suspension  of  civil  liberty 
by  the  government  in  time  of  war  and  public  danger ;  sixth, 
the  organization  of  government  within  the  constitution,  by 
the  sovereignty,  the  state ;  and  seventh,  the  security  of  the 
government  against  all  changes,  except  by  the  sovereignty 
organized  within  the  constitution.  Of  the  constitutions  which 
we  have  examined,  only  that  of  the  United  States  contains 
all  of  these  categories  with  any  degree  of  completeness.  And 
while  it  must  be  confessed  that  we  can  learn  much  from  the 
European  constitutions  in  the  organization  of  government 
and  in  the  details  of  administration,  yet  for  a  clearly  defined 
and  well  secured  civil  liberty, — one  which  can  defy  govern- 
ment, and  still  be  subject  to  the  state,  one  which  can  do  far 
more  for  civilization  upon  many  sides,  and  upon  many  of  its 
finer  sides,  than  the  best  ordered  government  which  the 
world  has  ever  produced,  —  Europe  must  come  to  us,  and 
take  lessons  in  the  school  of  our  experience.  We  have  not 
yet  by  any  means  perfected  our  system.  Our  conceptions  in 
reference  to  civil  liberty  are  still  clouded  by  crude  notions 
about  the  federal  system,  and  its  requirements  as  to  citizen- 
ship, and  the  immunities  of  citizenship ;  but  we  have  done  by 
far  the  best  in  this  direction  which  mankind  has  as  yet  ac- 
complished ;  and  while  we  feel  the  pressure  upon  all  sides  to 
expand  the  powers  of  government,  in  accordance  with  Euro- 
pean practice,  let  us  never  forget  that  constitutional  civil 
liberty  is  the  peculiar  product  of  our  own  political  genius ; 
and  let  us  sacrifice  no  part  of  it,  until  the  evidence  becomes 
indisputable  that,  as  to  that  part,  individual  autonomy  has 
become  either  dangerous  to  the  public  security  or  detri- 
mental to  the  general  welfare. 


APPENDIX    I. 

CONSTITUTION   OF   THE   UNITED   STATES 
OF  AMERICA. 


APPENDIX    I. 


CONSTITUTION    OF    THE    UNITED    STATES    OF 

AMERICA. 

We  the  People  of  the  United  States,  in  order  to  form  a  more  per- 
fect union,  establish  justice,  insure  domestic  tranquillity,  provide  for 
the  common  defence,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of  America. 

ARTICLE   I. 

Section  i.  All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States  which  shall  consist  of  a  Senate 
and  House  of  Representatives. 

Section  2.  The  House  of  Representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the  several 
States,  and  the  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  State  Legis- 
lature. 

No  person  shall  be  a  Representative  who  shall  not  have  attained 
to  the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of 
the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  in  which  he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  according  to 
their  respective  numbers,  which  shall  be  determined  by  adding  to 
the  whole  number  of  free  persons,  including  those  bound  to  service 
for  a  term  of  years,  and  excluding  Indians  not  taxed,  three-fifths  oC 
all  other  persons.  The  actual  enumeration  shall  be  made  within 
three  years  after  the  first  meeting  of  the  Congress  of  the  United 
States,  and  within  every  subsequent  term  of  ten  years,  in  such  manner 
as  they  shall  by  law  direct.  The  number  of  Representatives  shall  not 
exceed  one  for  every  thirty  thousand,  but  each  State  shall  have  at 

267 


268  Appendix. 

least  one  Representative ;  and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  choose  three,  Massa- 
chusetts eight,  Rhode  Island  and  Providence  Plantations  one,  Con- 
necticut five,  New  York  six,  New  Jersey  four,  Pennsylvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten,  North  Carolina  five,  South 
Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  representation  from  any  State,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

The  House  of  Representatives  shall  choose  their  Speaker  and  other 
officers  ;  and  shall  have  the  sole  power  of  impeachment. 

Section  3.  The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for 
six  years ;  and  each  Senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of  the 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three 
classes.  The  seats  of  the  Senators  of  the  first  class  shall  be  vacated 
at  the  expiration  of  the  second  year,  of  the  second  class,  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class,  at  the  expiration 
of  the  sixth  year,  so  that  one-third  may  be  chosen  every  second  year ; 
and  if  vacancies  happen  by  resignation,  or  otherwise,  during  the 
recess  of  the  Legislature  of  any  State,  the  executive  thereof  may 
make  temporary  appointments  until  the  next  meeting  of  the  Legisla- 
ture, which  shall  then  fill  such  vacancies. 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  for  which  he  shall  be  chosen. 

The  Vice-President  of  the  United  States  shall  be  President  of 
the  Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  Senate  shall  choose  their  other  officers,  and  also  a  president 
pro  tempore,  in  the  absence  of  the  Vice-President,  or  when  he 
shall  exercise  the  office  of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief- Justice 
shall  preside :  and  no  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and  enjoy  any 


Constitution  of  the   United  States.  269 

office  of  honor,  trust,  or  profit  under  the  United  States;  but  the 
party  convicted  shall  nevertheless  be  liable  and  subject  to  indict- 
ment, trial,  judgment,  and  punishment,  according  to  law. 

Section  4.  The  times,  places,  and  manner  of  holding  elections 
for  Senators  and  Representatives,  shall  be  prescribed  in  each  State 
by  the  Legislature  thereof;  but  the  Congress  may  at  anytime  by 
law  make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  year,  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless  they 
shall  by  law  appoint  a  different  day. 

Section  5.  Each  house  shall  be  the  judge  of  the  elections, 
returns  and  qualifications  of  its  own  members,  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business ;  but  a  smaller  num- 
ber may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  manner,  and  under  such 
penalties,  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  concurrence  of 
two-thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in  their 
judgment  require  secrecy,  and  the  yeas  and  nays  of  the  members 
of  either  house  on  any  question  shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  the  journal. 

Neither  house,  during  the  session  of  Congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to 
any  other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

Section  6.  The  Senators  and  Representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and  paid  out 
of  the  treasury  of  the  United  States.  They  shall  in  all  cases,  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  their  respective  houses,  and 
in  going  to  and  returning  from  the  same  ;  and  for  any  speech  or 
debate  in  either  house,  they  shall  not  be  questioned  in  any  other 
place. 

No  Senator  or  Representative  shall,  during  the  time  for  which  he 
was  elected,  be  appointed  to  any  civil  office  under  the  authority  of 
the  United  States,  which  shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased  during  such  time ;  and  no  person 


2  70  Appendix. 

holding  any  office  under  the  United  States,  shall  be  a  member  of 
either  house  during  his  continuance  in  office. 

Section  7.  All  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives ;  but  the  Senate  may  propose  or  concur  with 
amendments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  become  a  law,  be  presented  to  the 
President  of  the  United  States ;  if  he  approve  he  shall  sign  it,  but  if 
not,  he  shall  return  it,  with  his  objections,  to  that  house  in  which  it 
shall  have  originated,  who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If  after  such  reconsideration 
two-thirds  of  that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent, 
together  with  the  objections,  to  the  other  house,  by  which  it  shall 
likewise  be  reconsidered,  and  if  approved  by  two-thirds  of  that  house, 
it  shall  become  a  law.  But  in  all  such  cases  the  votes  of  both  houses 
shall  be  determined  by  yeas  and  nays,  and  the  names  of  the  persons 
voting  for  and  against  the  bill  shall  be  entered  on  the  journal  of 
each  house  respectively.  If  any  bill  shall  not  be  returned  by  the 
President  within  ten  days  (Sunday  excepted)  after  it  shall  have  been 
presented  to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he 
had  signed  it,  unless  the  Congress  by  their  adjournment  prevent  its 
return,  in  which  case  it  shall  not  be  a  law. 

Every  order,  resolution,  or  vote  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a 
question  of  adjournment)  shall  be  presented  to  the  President  of  the 
United  States ;  and  before  the  same  shall  take  effect,  shall  be  ap- 
proved by  him,  or  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  Senate  and  House  of  Representatives,  according  to 
the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

Section  8.  The  Congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts  and  excises,  to  pay  the  debts  and  provide  for  the  com- 
mon defence  and  general  welfare  of  the  United  States ;  but  all  duties, 
imposts  and  excises  shall  be  uniform  throughout  the  United  States ; 

To  borrow  money  on  the  credit  of  the  United  States ; 

To  regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes ; 

To  establish  a  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies  throughout  the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and 
fix  the  standard  of  weights  and  measures ; 


Constitution  of  the   United  States.  271 

To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States  ; 

To  establish  post-offices  and  post-roads ; 

To  promote  the  progress  of  science  and  useful  arts,  by  securing  for 
limited  times  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries; 

To  constitute  tribunals  inferior  to  the  Supreme  Court ; 
To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations ; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water; 

To  raise  and  support  armies,  but  no  appropriation  of  money  to 
that  use  shall  be  for  a  longer  term  than  two  years  ; 
To  provide  and  maintain  a  navy ; 

To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces ; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections  and  repel  invasions  ; 

To  provide  for  organizing,  arming,  and  disciplining,  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  service 
of  the  United  States,  reserving  to  the  States  respectively,  the  appoint- 
ment of  the  officers,  and  the  authority  of  training  the  militia  according 
to  the  discipline  prescribed  by  Congress  ; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  par- 
ticular States,  and  the  acceptance  of  Congress,  become  the  seat  of  the 
government  of  the  United  States,  and  to  exercise  like  authority  over 
all  places  purchased  by  the  consent  of  the  Legislature  of  the  State  in 
which  the  same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals, 
dockyards,  and  other  needful  buildings  ;  —  And 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers  vested  by 
this  Constitution  in  .the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof. 

Section  9.  The  migration  or  importation  of  such  persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  one  thousand  eight  hun- 
dred and  eight,  but  a  tax  or  duty  may  be  imposed  on  such  importa- 
tion, not  exceeding  ten  dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 


272  Appendix. 

unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it. 

No  bill  of  attainder  or  ex-post-facto  law  shall  be  passed. 

No  capitation,  or  other  direct  tax  shall  be  laid,  unless  in  proportion 
to  the  census  or  enumeration  herein  before  directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State. 

No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  State  over  those  of  another  :  nor  shall 
vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter,  clear,  or 
pay  duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  consequence 
of  appropriations  made  by  law ;  and  a  regular  statement  and  account 
of  the  receipts  and  expenditures  of  all  public  money  shall  be  pub- 
lished from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States  :  And  no 
person  holding  any  office  of  profit  or  trust  under  them,  shall,  without 
the  consent  of  the  Congress,  accept  of  any  present,  emolument,  office, 
or  title,  of  any  kind  whatever,  from  any  king,  prince,  or  foreign  state. 

Section  io.  No  State  shall  enter  into  any  treaty,  alliance,  or  con- 
federation ;  grant  letters  of  marque  and  reprisal ;  coin  money ;  emit 
bills  of  credit ;  make  anything  but  gold  and  silver  coin  a  tender  in 
payment  of  debts ;  pass  any  bill  of  attainder,  ex-post-facto  law,  or  law 
impairing  the  obligation  of  contracts,  or  grant  any  title  of  nobility. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  may  be"  absolutely 
necessary  for  executing  its  inspection  laws  :  and  the  net  produce  of 
all  duties  and  imposts,  laid  by  any  State  on  imports  or  exports,  shall 
be  for  the  use  of  the  treasury  of  the  United  States  ;  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Congress. 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  of 
tonnage,  keep  troops,  or  ships-of-war,  in  time  of  peace,  enter  into 
any  agreement  or  compact  with  another  State,  or  with  a  foreign 
power,  or  engage  in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 

ARTICLE  II. 

Section  i.  The  executive  power  shall  be  vested  in  a  President  of 
the  United  States  of  America.  He  shall  hold  his  office  during  the 
term  of  four  years,  and,  together  with  the  Vice-President,  chosen  for 
the  same  term,  be  elected,  as  follows 


Constitution  of  the   United  States.  273 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof 
may  direct,  a  number  of  electors,  equal  to  the  whole  number  of 
Senators  and  Representatives  to  which  the  State  may  be  entitled  in 
the  Congress  :  but  no  Senator  or  Representative,  or  person  holding 
any  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed 
an  elector. 

[The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhabi- 
tant of  the  same  State  with  themselves.  And  they  shall  make  a  list 
of  all  the  persons  voted  for,  and  of  the  number  of  votes  for  each ; 
which  list  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat 
of  the  government  of  the  United  States,  directed  to  the  President  of 
the  Senate.  The  President  of  the  Senate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the  certificates, 
and  the  votes  shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  shall  be  the  President,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed ;  and  if  there  be  more 
than  one  who  have  such  majority,  and  have  an  equal  number  of 
votes,  then  the  House  of  Representatives  shall  immediately  choose 
by  ballot  one  of  them  for  President ;  and  if  no  person  have  a  major- 
ity, then  from  the  five  highest  on  the  list  the  said  house  shall,  in  like 
manner,  choose  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  States,  the  representation  from  each  State 
having  one  vote  ;  a  quorum  for  this  purpose  shall  consist  of  a  mem- 
ber or  members  from  two-thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  In  every  case,  after  the 
choice  of  the  President,  the  person  having  the  greatest  number  of 
votes  of  the  electors  shall  be  the  Vice-President.  But  if  there  should 
remain  two  or  more  who  have  equal  votes,  the  Senate  shall  choose 
from  them  by  ballot  the  Vice-President] 

The  Congress  may  determine  the  time  of  choosing  the  electors, 
and  the  day  on  which  they  shall  give  their  votes ;  which  day  shall  be 
the  same  throughout  the  United  States. 

No  person  except  a  natural  born  citizen,  or  a  citizen  of  the  United 
States,  at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible 
to  the  office  of  President ;  neither  shall  any  person  be  eligible  to  that 
office  who  shall  not  have  attained  to  the  age  of  thirty-five  years,  and 
been  fourteen  years  a  resident  within  the  United  States. 

In  case  of  the  removal  of  the  President  from  office,  or  of  his  death, 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the 


2  74  Appendix. 

said  office,  the  same  shall  devolve  on  the  Vice-President,  and  the 
Congress  may  by  law  provide  for  the  case  of  removal,  death,  resigna- 
tion or  inability,  both  of  the  President  and  Vice-President,  declaring 
what  officer  shall  then  act  as  President,  and  such  officer  shall  act 
accordingly,  until  the  disability  be  removed,  or  a  President  shall  be 
elected. 

The  President  shall,  at  stated  times,  receive  for  his  services,  a  com- 
pensation, which  shall  neither  be  increased  nor  diminished  during  the 
period  for  which  he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  period  any  other  emolument  from  the  United  States,  or 
any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the  fol- 
lowing oath  or  affirmation  :  —  "  I  do  solemnly  swear  (or  affirm)  that 
I  will  faithfully  execute  the  office  of  President  of  the  United  States, 
and  will  to  the  best  of  my  ability,  preserve,  protect  and  defend  the 
Constitution  of  the  United  States." 

Section  2.  The  President  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several  States, 
when  called  into  the  actual  service  of  the  United  States ;  he  may 
require  the  opinion,  in  writing,  of  the  principal  officer  in  each  of  the 
executive  departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices,  and  he  shall  have  power  to  grant  reprieves 
and  pardons  for  offences  against  the  United  States,  except  in  cases 
of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  make  treaties,  provided  two-thirds  of  the  Senators  present 
concur ;  and  he  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate,  shall  appoint  ambassadors,  other  public  ministers 
and  consuls,  judges  of  the  Supreme  Court,  and  all  other  officers  of 
the  United  States,  whose  appointments  are  not  herein  otherwise  pro- 
vided for,  and  which  shall  be  established  by  law :  but  the  Congress 
may  by  law  vest  the  appointment  of  such  inferior  officers,  as  they 
think  proper,  in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by  granting  commissions 
which  shall  expire  at  the  end  of  their  next  session. 

Section  3.  He  shall  from  time  to  time  give  to  the  Congress  infor- 
mation of  the  state  of  the  Union,  and  recommend  to  their  considera- 
tion such  measures  as  he  shall  judge  necessary  and  expedient ;  he 


Constitution  of  the   United  States.  275 

may,  on  extraordinary  occasions,  convene  both  houses,  or  either  of 
them,  and  in  case  of  disagreement  between  them,  with  respect  to  the 
time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall 
think  proper ;  he  shall  receive  ambassadors  and  other  public  minis- 
ters ;  he  shall  take  care  that  the  laws  be  faithfully  executed,  and  shall 
commission  all  the  officers  of  the  United  States. 

Section  4.  The  President,  Vice-President  and  all  civil  officers  of 
the  United  States,  shall  be  removed  from  office  on  impeachment  for, 
and  conviction  of,  treason,  bribery,  or  other  high  crimes  and  mis- 
demeanors. 

ARTICLE  III. 

Section  i.  The  judicial  power  of  the  United  States,  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish.  The  judges,  both  of  the 
Supreme  and  inferior  courts,  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive  for  their  services,  a  compen- 
sation, which  shall  not  be  diminished  during  their  continuance  in  office. 

Section  2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority ;  — 
to  all  cases  affecting  ambassadors,  other  public  ministers  and  con- 
suls ;  —  to  all  cases  of  admiralty  and  maritime  jurisdiction  ;  — to  con- 
troversies to  which  the  United  States  shall  be  a  party ;  —  to  contro- 
versies between  two  or  more  States  ;  —  between  a  State  and  citizens 
of  another  State  ;  —  between  citizens  of  different  States,  —  between 
citizens  of  the  same  State  claiming  lands  under  grants  of  different 
States,  and  between  a  State,  or  the  citizens  thereof,  and  foreign  states, 
citizens  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and  con- 
suls, and  those  in  which  a  State  shall  be  party,  the  Supreme  Court 
shall  have  original  jurisdiction.  In  all  the  other  cases  before  men- 
tioned, the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions,  and  under  such  regulations 
as  the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury ;  and  such  trial  shall  be  held  in  the  State  where  the  said  crimes 
shall  have  been  committed ;  but  when  not  committed  within  any 
State,  the  trial  shall  be  at  such  place  or  places  as  the  Congress  may 
by  law  have  directed. 


276  Appendix. 

Section  3.  Treason  against  the  United  States,  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort. 

No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. 

The  Congress  shall  have  power  to  declare  the  punishment  of  trea- 
son, but  no  attainder  of  treason  shall  work  corruption  of  blood,  or 
forfeiture,  except  during  the  life  of  the  person  attainted. 


ARTICLE  IV. 

Section  i.  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  State. 
And  the  Congress  may  by  general  laws  prescribe  the  manner  in 
which  such  acts,  records  and  proceedings  shall  be  proved,  and  the 
effect  thereof. 

Section  2.  The  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  State,  shall  on 
demand  of  the  executive  authority  of  the  State  from  which  he  fled, 
be  delivered  up,  to  be  removed  to  the  State  having  jurisdiction  of 
the  crime. 

No  person  held  to  service  or  labor  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor,  but  shall 
be  delivered  up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due. 

Section  3.  New  States  may  be  admitted  by  the  Congress  into  this 
Union ;  but  no  new  State  shall  be  formed  or  erected  within  the  juris- 
diction of  any  other  State  ;  nor  any  State  be  formed  by  the  junction 
of  two  or  more  States,  or  parts  of  States,  without  the  consent  of  the 
Legislatures  of  the  States  concerned  as  well  as  of  the  Congress. 

The  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  be- 
longing to  the  United  States ;  and  nothing  in  this  Constitution  shall 
be  so  construed  as  to  prejudice  any  claims  of  the  United  States,  or 
of  any  particular  State. 

Section  4.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each  of 


Constitution  of  the   Uiiited  States.  277 

mem  against  invasion ;  and  on  application  of  the  Legislature,  or  of 
the  Executive  (when  the  Legislature  cannot  be  convened)  against 
domestic  violence. 

ARTICLE  V. 

The  Congress,  whenever  two-thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  Constitution,  or,  on  the 
application  of  the  Legislatures  of  two-thirds  of  the  several  States, 
shall  call  a  convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of  this  Consti- 
tution, when  ratified  by  the  Legislatures  of  three-fourths  of  the  sev- 
eral States,  or  by  conventions  in  three-fourths  thereof,  as  the  one  or 
the  other  mode  of  ratification  may  be  proposed  by  the  Congress ; 
provided  that  no  amendment  which  may  be  made  prior  to  the  year 
one  thousand  eight  hundred  and  eight  shall  in  any  manner  affect  the 
first  and  fourth  clauses  in  the  ninth  section  of  the  first  article ;  and 
that  no  State,  without  its  consent,  shall  be  deprived  of  its  equal 
suffrage  in  the  Senate. 

ARTICLE  VI. 

All  debts  contracted  and  engagements  entered  into,  before  the 
adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution,  as  under  the  Confederation. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof;  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land ;  and  the  judges  in  every  State  shall  be  bound  there- 
by, anything  in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and  the  mem' 
bers  of  the  several  State  Legislatures,  and  all  executive  and  judicial 
officers,  both  of  the  United  States  and  of  the  several  States,  shall  be 
bound  by  oath  or  affirmation  to  support  this  Constitution ;  but  no 
religious  test  shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States. 

ARTICLE  VII. 

The  ratification  of  the  Conventions  of  nine  States  shall  be  sufficient 
for  the  establishment  of  this  Constitution  between  the  States  so  rati- 
fying the  same. 


278 


Appendix. 


Done  in  convention,  by  the  unanimous  consent  of  the  States 
present  the  seventeenth  day  of  September  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  eighty-seven 
and  of  the  independence  of  the  United  States  of  America 
the  twelfth 

In  witness  whereof  we  have  hereunto  subscribed  our  names 

Go:  WASHINGTON  — 
Presid.  and  deputy  from  Virginia. 


NEW   HAMPSHIRE. 
John  Langdon 
Nicholas  Gilman 

MASSACHUSETTS. 
Nathaniel  Gorham 
Rufus  King 

CONNECTICUT. 
Wm.  Saml.  Johnson 
Roger  Sherman 

NEW  YORK. 
Alexander  Hamilton 

NEW  JERSEY. 
Wil  :  Livingston 
David  Brearley 
Wm.  Paterson. 
Jona  :  Dayton 

PENNSYLVANIA. 
B  Franklin 
Thomas  Mifflin 
Robt.  Morris. 
Geo.  Clymer 
Thos.  Fitzsimons 
Jared  Ingersoll 
James  Wilson 
Gouv  Morris 

Attest 


DELAWARE. 
Geo  :  Read 
GuNNnsrG  Bedford  Jun 
John  Dickinson 
Richard  Bassett 
Jaco  :  Broom 

MARYLAND. 

James  McHenry 

Dan  of  St  Thos.  Jenifer 

Dan  Carroll 

VIRGINIA. 
John  Blair  — 
James  Madison  Jr. 

NORTH   CAROLINA. 
Wm.  Blount 
rlchd  dobbs  spaight 
Hu  Williamson 

SOUTH   CAROLINA. 
j.  rutledge 

Charles  Cotesworth  Pinckney 
Charles  Pinckney 
Pierce  Butler. 

GEORGIA. 
William  Few 
Abr  Baldwin 

WILLIAM  JACKSON,  Secretary 


Constitution  of  the  United  States.  279 


ARTICLES 

In  Addition  to,  and  Amendment  of  the  Constitution  of  the  United 
States  of  America,  proposed  by  Congress,  and  ratified  by  the  Legis- 
latures of  the  several  States,  pursuant  to  the  Provisions  of  the 
Fifth  Article  of  the  Original  Constitution. 

Article  i.  —  Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof;  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press ;  or  the  right  of  the 
peopie  peaceably  to  assemble,  and  to  petition  the  government  for 
a  redress  of  grievances. 

Article  II.  —  A  well-regulated  militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms,  shall  not  be  infringed. 

Article  III.  —  No  soldier  shall,  in  time  of  peace  be  quartered  in 
any  house,  without  the  consent  of  the  owner,  nor  in  time  of  war,  but 
in  a  manner  to  be  prescribed  by  law. 

Article  IV.  —  The  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  papers,  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated,  and  no  warrants  shall  issue,  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized. 

Article  V.  —  No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indictment  of 
a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in 
the  militia,  when  in  actual  service  in  time  of  war  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice  put 
in  jeopardy  of  life  or  limb  ;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  lib- 
erty, or  property,  without  due  process  of  law ;  nor  shall  private  prop- 
erty be  taken  for  public  use,  without  just  compensation. 

Article  VI.  —  In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
State  and  district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation  ;  to  be  confronted 
with   the  witnesses   against  him ;  to  have   compulsory  process   for 


280  Appendix. 

obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel 
for  his  defence. 

Article  VII.  — In  suits  at  common  law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise  re-ex- 
amined in  any  court  of  the  United  States,  than  according  to  the  rules 
of  the  common  law. 

Article  VIII.  —  Excessive  bail  shall  not  be  required,  nor  exces- 
sive fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Article  IX.  —  The  enumeration  in  the  Constitution,  of  certain 
rights,  shall  not  be  construed  to  deny  or  disparage  others  retained  by 
the  people. 

Article  X.  —  The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  people. 

Article  XL  — The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  any  foreign  state. 

Article  XII.  —  The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Vice-President,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  State  with  themselves ; 
they  shall  name  in  their  ballots  the  person  voted  for  as  President,  and 
in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and  of 
all  persons  voted  for  as  Vice-President,  and  of  the  number  of  votes 
for  each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  government  of  the  United  States,  directed  to  the  Presi- 
dent of  the  Senate  ;  —  the  President  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the  certificates 
and  the  votes  shall  then  be  counted ;  —  the  person  having  the  greatest 
number  of  votes  for  President,  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  electors  appointed  ;  and  if  no 
person  have  such  majority,  then  from  the  persons  having  the  highest 
numbers  not  exceeding  three  on  the  list  of  those  voted  for  as  Presi- 
dent, the  House  of  Representatives  shall  choose  immediately,  by  bal- 
lot, the  President.  But  in  choosing  the  President,  the  votes  shall  be 
taken  by  States,  the  representation  from  each  State  having  one  vote ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 


Constitution  of  the   United  States.  281 

necessary  to  a  choice.  And  if  the  House  of  Representatives  shall  not 
choose  a  President  whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in  the  case  of  the  death  or  other 
constitutional  disability  of  the  President.  The  person  having  the 
greatest  number  of  votes  as  Vice-President,  shall  be  the  Vice-Presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed  and  if  no  person  have  a  majority,  then  from  the  two  high- 
est numbers  on  the  list,  the  Senate  shall  choose  the  Vice-President ; 
a  quorum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  Senators,  and  a  majority  of  the  whole  number  shall  be  nec- 
essary to  a  choice.  But  no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice-President  of  the 
United  States. 

Article  XIII.  —  Section  1.  Neither  slavery  nor  involuntary  servi- 
tude, except  as  a  punishment  for  crime  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

Article  XIV.  —  Section  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside.  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or  immu- 
nities of  citizens  of  the  United  States  ;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process  of  law ; 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  State,  excluding  Indians  not  taxed.  But 
when  the  right  to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  of  the  United  States,  Representatives  in 
Congress,  the  executive  and  judicial  officers  of  a  State,  or  the  members 
of  the  Legislature  thereof,  is  denied  to  any  of  the  male  inhabitants 
of  such  State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  participation  in 
rebellion  or  other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State. 


282  Appendix. 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in  Con- 
gress, or  elector  of  President  and  Vice-President,  or  hold  any  office, 
civil  or  military,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a  member  of  Congress,  or  as 
an  officer  of  the  United  States,  or  as  a  member  of  any  State  Legis- 
lature, or  as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged  in  insurrec- 
tion or  rebellion  against  the  same,  or  given  aid  or  comfort  to  the 
enemies  thereof.  But  Congress  may  by  a  vote  of  two-thirds  of  each 
house,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of 
insurrection  or  rebellion  against  the  United  States,  or  any  claim  for 
the  loss  or  emancipation  of  any  slave ;  but  all  such  debts,  obligations 
and  claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

Article  XV.  —  Section  1.  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the  United  States 
or  by  any  State  on  account  of  race,  color,  or  previous  condition  of 
servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 


APPENDIX   II. 


VERFASSUNG   DES   DEUTSCHEN   REICHS 


APPENDIX   II. 


I. 

GESETZ, 

BETREFFEND 

DIE  VERFASSUNG   DES   DEUTSCHEN   REICHS. 

Vom  16.  April  1871. 
(RGB.  1871.  Nr.  16.  S.  63.) 

Wir  Wilhelm,  von  Gottes  Gnaden  Deutscher  Kaiser,  Konig  von 
Preussen  &c.  verordnen  hiermit  im  Namen  des  Deutschen  Reichs, 
nach  erfolgter  Zustimmung  des  Bundesrathes  und  des  Reichstages, 
was  folgt : 

§  1.  An  die  Stelle  der  zwischen  dem  Norddeutschen  Bunde  und 
den  Grossherzogthumern  Baden  und  Hessen  vereinbarten  Verfassung 
des  Deutschen  Bundes  (RGB.  vom  J.  1870.  S.  627  ff.),  sowie  der 
mit  den  Konigreichen  Bayem  und  Wtirttemberg  iiber  den  Beitritt  zu 
dieser  Verfassung  geschlossenen  Vertrage  v.  23.  und  25.  Nov.  1870 
(RGB.  vom  J.  1871  S.  9.  ff.  und  vom  J.  1870  S.  654  ff.)  tritt  die 
beigefiigte 
Verfassungs-Urkunde  fur  das  Deutsche  Reich. 

§  2.  Die  Bestimmungen  in  Art.  80  der  in  §  1  gedachten  Verfassung 
des  Deutschen  Bundes  (RGB.  vom  J.  1870  S.  647),  unter  III.  §  8 
des  Vertrages  mit  Bayern  v.  23.  Nov.  1870  (RGB.  vom  J.  1871  S. 
21.  ff.),  in  Art.  2  Nr.  6  des  Vertrages  mit  Wiirttemberg  v.  25.  Nov.  1870 
(RGB.  vom  J.  1870  S.  656),  iiber  die  Einfuhrung  der  im  Norddeut- 
schen Bunde  ergangenen  Gesetze  in  diesen  Staaten  bleiben  in  Kraft. 

Die  dort  bezeichneten  Gesetze  sind  Reichsgesetze.  Wo  in  den- 
selben  von  dem  Norddeutschen  Bunde,  dessen  Verfassung,  Gebiet, 
Mitgliedern  oder  Staaten,  Indigenat,  verfassungsmassigen  Organen, 
Angehorigen,  Beamten,  Flagge  u.  s.  w.  die  Rede  ist,  sind  das  Deutsche 
Reich  und  dessen  entsprechende  Beziehungen  zu  verstehen. 

Dasselbe  gilt  von  denjenigen  im  Norddeutschen  Bunde  ergangenen 

285 


286  Appendix. 

Gesetzen,  welche  in  der  Folge  in  einem  der  genannten  Staaten  ein- 
geftihrt  werden. 

§  3.  Die  Vereinbarungen  in  dem  zu  Versailles  am  15.  Nov.  1870 
aufgenommenen  Protokolle  (RGB.  vom  J.  1870  S.  650  ff.),  in  der 
Verhandlung  zu  Berlin  vom  25.  Nov.  1870  (RGB.  vom  J.  1870  S. 
657),  dem  Schlussprotokolle  v.  23.  Nov.  1870  (RGB.  vom  J.  1871 
S.  23  ff.),  sowie  unter  IV.  des  Vertrages  mit  Bayern  v.  23.  Nov.  1870 
(a.  a.  O.  S.  21  ff.)  werden  durch  dieses  Gesetz  nicht  beruhrt. 

Urkundlich  unter  Unserer  Hochsteigenhandigen  Unterschrift  und 
beigedrucktem  Kaiserl.  Insiegel. 

Gegeben  Berlin,  d.  16.  April  1871.  (L.S.)  WlLHELM. 

Fiirst  v.  Bismarck. 


II. 

VERFASSUNG 

DES 

DEUTSCHEN    REICHS. 

Seine  Majestat  der  Konig  von   Preussen  im  Namen  des  Nord- 

deutschen   Bundes,  Seine  Majestat   der   Konig  von   Bayern,  Seine 

Majestat  der  Konig  von  Wurttemberg,  Seine  Konigliche  Hoheit  der 

Grossherzog  von  Baden  und  Seine   Konigliche   Hoheit  der  Gross- 

herzog  von  Hessen  und  bei  Rhein  fur  die  stidlich  vom  Main  bele- 

genen  Theile  des  Grossherzogthums  Hessen,  schliessen  einen  ewigen 

Bund  zum  Schutze  des  Bundesgebietes  und  des  innerhalb  desselben 

giiltigen  Rechtes,   sowie  zur  Pfiege  der  Wohlfahrt  des   Deutschen 

Volkes.     Dieser  Bund  wird  den  Namen  Deutsches  Reich  fiihren  und 

wird  nachstehende 

VERFASSUNG 
haben. 

I.     BUNDESGEBIET. 

Art.  1.  Das  Bundesgebiet  besteht  aus  den  Staaten  Preussen  mit 
Lauenburg,  Bayern,  Sachsen,  Wurttemberg,  Baden,  Hessen,  Meck- 
lenburg-Schwerin,  Sachsen-Weimar,  Mecklenburg-Strelitz,  Oldenburg, 
Braunschweig,  Sachsen- Meiningen,  Sachsen- Altenburg,  Sachsen- 
Koburg-Gotha,  Anhalt,  Schwarzburg-Rudolstadt,  Schwarzburg-Son- 
dershausen,  Waldeck,  Reuss  alterer  Linie,  Reuss  jiingerer  Linie, 
Schaumburg-Lippe,  Lippe,  Liibeck,  Bremen  und  Hamburg. 


Verfassung  des  Deutschen  Reichs.  287 

II.   Reichsgesetzgebung. 

Art.  2.  Innerhalb  dieses  Bundesgebietes  iibt  das  Reich  das  Recht 
der  Gesetzgebung  nach  Massgabe  des  Inhalts  dieser  Verfassung  und 
mit  der  Wirkung  aus,  dass  die  Reichsgesetze  den  Landesgesetzen 
vorgehen.  Die  Reichsgesetze  erhalten  ihre  verbindliche  Kraft  durch 
ihre  Verkiindigung  von  Reichswegen,  welche  vermittelst  eines  Reichs- 
gesetzblattes  geschieht.  Sofern  nicht  in  dem  publicirten  Gesetze  ein 
anderer  Anfangstermin  seiner  verbindlichen  Kraft  bestimmt  ist,  be- 
ginnt  die  letztere  mit  dem  vierzehnten  Tage  nach  dem  Ablauf  des- 
jenigen  Tages,  an  welchem  das  betreffende  Stuck  des  Reichsgesetz- 
blattes  in  Berlin  ausgegeben  worden  ist. 

Art.  3.  Fiir  ganz  Deutschland  besteht  ein  gemeinsames  Indigenat 
mit  der  Wirkung,  dass  der  Angehorige  (Unterthan,  Staatsburger) 
eines  jeden  Bundesstaates  in  jedem  anderen  Bundesstaate  als  In- 
lander zu  behandeln  und  demgemass  zum  festen  Wohnsitz,  zum 
Gewerbebetriebe,  zu  offentlichen  Aemtern,  zur  Erwerbung  von  Grund- 
stucken,  zur  Erlangung  des  Staatsbiirgerrechtes  und  zum  Genusse  aller 
sonstigen  btirgerlichen  Rechte  unter  denselben  Voraussetzungen  wie 
der  Einheimische  zuzulassen,  auch  in  Betreff  der  Rechtsverfolgung 
und  des  Rechtsschutzes  demselben  gleich  zu  behandeln  ist. 

Kein  Deutscher  darf  in  der  Ausiibung  dieser  Vefugniss  durch  die 
Obrigkeit  seiner  Heimath,  oder  durch  die  Obrigkeit  eines  anderen 
Bundesstaates  beschrankt  werden. 

Diejenigen  Bestimmungen,  welche  die  Armenversorgung  und  die 
Aufnahme  in  den  lokalen  Gemeindeverband  betreffen,  werden  durch 
den  im  ersten  Absatz  ausgesprochenen  Grundsatz  nicht  bertihrt. 

Ebenso  bleiben  bis  auf  Weiteres  die  Vertrage  in  Kraft,  welche 
zwischen  den  einzelnen  Bundesstaaten  in  Beziehung  auf  die  Ueber- 
nahme  von  Auszuweisenden,  die  Verpflegung  erkrankter  und  die 
Beerdigung  verstorbener  Staatsangehorigen  bestehen. 

Hinsichtlich  der  Erfullung  der  Militairpflicht  im  Verhaltniss  zu 
dem  Heimathslande  wird  im  Wege  der  Reichsgesetzgebung  das 
Nothige  geordnet  werden. 

Dem  Auslande  gegeniiber  haben  alle  Deutschen  gleichmassig  Ans- 
pruch  auf  den  Schutz  des  Reichs. 

Art.  4.  Der  Beaufsichtigung  Seitens  des  Reichs  und  der  Gesetz- 
gebung desselben  unterliegen  die  nachstehenden  Angelegenheiten  : 
1)  die  Bestimmungen  uber  Freiziigigkeit,  Heimaths-  und  Niederlas- 
sungsverhaltnisse,  Staatsbiirgerrecht,  Passwesen  und  Fremdenpolizei 


288  Appendix. 

und  iiber  den  Gewerbebetrieb,  einschliesslich  des  Versicherungs- 
wesens,  soweit  diese  Gegenstande  nicht  schon  durch  den  Art.  3  dieser 
Verfassung  erledigt  sind,  in  Bayern  jedoch  mit  Ausschluss  der  Hei- 
maths-  und  Niederlassungsverhaltnisse,  desgleichen  iiber  die  Koloni- 
sation  und  die  Auswanderung  nach  ausserdeutschen  Landern  ;  2)  die 
Zoll-  und  Handelsgesetzgebung  und  die  fiir  die  Zwecke  des  Reichs  zu 
verwendenden  Steuern ;  3)  die  Ordnung  des  Maass-,  Mlinz-  und  Ge- 
wichtssystems,  nebst  Feststellung  der  Grundsatze  tiber  die  Emission 
von  fundirtem  und  unfundirtem  Papiergelde  ;  4)  die  allgemeinen  Be- 
stimmungen  iiber  das  Bank  wesen ;  5)  die  Erfindungspatente  ;  6)  der 
Schutz  des  geistigen  Eigenthums ;  7)  Organisation  eines  gemeinsa- 
men  Schutzes  des  Deutschen  Handels  im  Auslande,  der  Deutschen 
Schifffahrt  und  ihrer  Fiagge  zur  See  und  Anordnung  gemeinsamer 
konsularischer  Vertretung,   welche  vom    Reiche    ausgestattet  wird ; 

8)  das  Eisenbahnvvesen,  in  Bayern  vorbehaltlich  der  Bestimmung  im 
Art.  46,  und  die  Herstellung  von  Land-  und  Wasserstrassen  im  In- 
teresse   der   Landesvertheidigung   und   des    allgemeinen  Verkehrs ; 

9)  der  Flosserei-  und  Schifffahrtsbetrieb  auf  den  mehreren  Staaten 
gemeinsamen  Wasserstrassen  und  der  Zustand  der  letzteren,  sowie 
die  Fluss-  und  sonstigen  Wasserzolle  ; 

I.  RG.  v.  3.  Marz  1873,  betr.  einen  Zusatz  zu  dem  Art.  4  Nr.  9  der  Reichs- 
Verfassung.     (RGB.  1873  S.  47). 

Wir  Wilhelm  von  Gottes  Gnaden  Deutscher  Kaiser,  Konig  von  Preussen 
&c.  verordnen  im  Namen  des  Deutschen  Reichs,  nach  erfolgter  Zustimm- 
ung  des  Bundesrathes  und  des  Reichstages,  was  folgt: 

Einziger  Paragraph. 

Im  Artikel  4  der  Reichsverfassung  ist  der  Nr.  9  hinzuzufiigen : 

desgleichen  die  Seeschifffahrtszeichen  (Leuchtfeuer,  Tonnen,  Bar- 
ken und  sonstige  Tagesmarken). 

Urkundlich  unter  Unserer  Hochsteigenhandigen  Unterschrift  und  beige- 

drucktem  Kaiserl.    Insiegel. 

(L.  S.)  Wilhelm. 

Gegeben  Berlin,  d.  3.  Marz  1873.  FUrst  y  Bismarck. 

10)  das  Post-  und  Telegraphenwesen,  jedoch  in  Bayern  und  Wiirt- 
temberg  nur  nach  Massgabe  der  Bestimmung  im  Art.  52  ;  n)  Bes- 
timmungen  iiber  die  wechselseitige  Vollstreckung  von  Erkenntnis- 
sen  in  Civilsachen  und  Erledigung  von  Requisitionen  iiberhaupt; 
12)  sowie  iiber  die  Beglaubigung  von  offentlichen  Urkunden  ;  13)  die 
gemeinsame  Gesetzgebung  iiber  das  Obligationenrecht,  Strafrecht, 
Handels-  und  Wechselrecht  und  das  gerichtliche  Verfahren  ; 


Verfassung  des  Deutschen  Reichs.  289 

I.  RG.  v.  20.  Dec.  1873,  betr.  die  Abandoning  der  Nr.  13  des  Art.  4  der  Ver- 
fassung des  Deutschen  Reichs.     (RGB.   1873  S.  379). 

Wir  Wilhelm  von  Gottes  Gnaden  Deutscher  Kaiser,  Konig  von  Preussen 
&c.  verordnen  im  Namen  des  Deutschen  Reichs,  nach  erfolgter  Zustimmung 
des  Bundesraths  und  des  Reichstags,  was  folgt : 

Einziger  Paragraph. 

An  Stelle  der  Nr.  13  des  Art.  4  der  Verf.  des  Deutschen  Reichs  tritt  die 
nachfolgende  Bestimmung : 

Die   gemeinsame    Gesetzgebung   iiber   das   gesammte   burgerliche 
Recht,  das  Strafrecht  und  das  gerichtliche  Verfahren. 
Urkundlich  unter  Unserer  Hochsteigenhiindigen  Unterschrift  und  beige- 
drucktem  Kaiserl.  Insiegel. 

(L.  S.)  Wilhelm. 

Geeeben  Berlin,  d.  20.  Dec.  1873.  _..  „.  , 

&  '°  Furst  v.  Bismarck. 

14)  das  Militairwesen  des  Reichs  und  die  Kriegsmarine ;  15)  Mass- 
regeln  der  Medicinal-  und  Veterinarpolizei ;  16)  Die  Bestimmungen 
iiber  die  Presse  und  das  Vereinswesen. 

Art.  5.  Die  Reichsgesetzgebung  wird  ausgeiibt  durch  den  Bun- 
desrath  und  den  Reichstag.  Die  Uebereinstimmung  der  Mehrheits- 
beschlusse  beider  Versammlungen  ist  zu  einem  Reichsgesetze  erfor- 
derlich  und  ausreichend. 

Bei  Gesetzesvorschlagen  iiber  das  Militairwesen,  die  Kriegsmarine 
und  die  im  Art.  35  bezeichneten  Abgaben  giebt,  wenn  im  Bundes- 
rathe  eine  Meinungsverschiedenheit  stattfindet,  die  Stimme  des  Pre- 
sidiums den  Ausschlag,  wenn  sie  sich  fur  die  Aufrechthaltung  der 
bestehenden  Einrichtungen  ausspricht. 


III.     BUNDESRATH. 

Art.  6.  Der  Bundesrath  besteht  aus  den  Vertretern  der  Mitglieder 
des  Bundes,  unter  welchen  die  Stimmfuhrung  sich  in  der  Weise  ver- 
theilt,  dass  Preussen  mit  den  ehemaligen  Stimmen  von  Hannover, 
Kurhessen,  Holstein,  Nassau  und  Frankfurt     .     .     17  Stimmen 

fiihrt,     Bayern 6 

Sachsen        4 

Wurttemberg 4 

Baden 3 

Hessen 3 

Mecklenburg-Schwerin 2 

Sachsen-Weimar 1 


290 


Appendix. 


Mecklenburg-Strelitz      .     . 

Oldenburg        

Braunschweig 

Sachsen-Meiningen  .  .  . 
Sachsen-Altenburg  .  .  . 
Sachsen-Koburg-Gotha 

Anhalt 

Schwarzburg-Rudolstadt 
Schwarzburg-Sondershausen 

Waldeck 

Reuss  alterer  Linie  .  .  . 
Reuss  j  lingerer  Linie  .  . 
Schaumburg-Lippe     .     .     . 

Lippe 

Ltibeck  

Bremen 

Hamburg 


Stimmen. 


zusammen  58  Stimmen. 


Jedes  Mitglied  des  Bundes  kann  so  viel  Bevollmachtigte  zum  Bun- 
desrathe  ernennen,  wie  es  Stimmen  hat,  doch  kann  die  Gesammtheit 
der  zustandigen  Stimmen  nur  einheitlich  abgegeben  werden. 

Art.  7.  Der  Bundesrath  beschleisst :  1)  iiber  die  dem  Reichstage 
zu  machenden  Vorlagen  und  die  von  demselben  gefassten  Besch- 
liisse  ;  2)  tiber  die  zur  Ausfiihrung  der  Reichsgesetze  erforderlichen 
allgemeinen  Verwaltungsvorschriften  und  Einrichtungen,  sofern  nicht 
durch  Reichsgesetz  etwas  Anderes  bestimmt  ist;  3)  tiber  Mangel, 
welche  bei  der  Ausfiihrung  der  Reichsgesetze  oder  der  vorstehend 
erwahnten  Vorschriften  oder  Einrichtungen  hervortreten. 

Jedes  Bundesglied  ist  befugt,  Vorschlage  zu  machen  und  in  Vor- 
trag  zu  bringen,  und  das  Presidium  ist  verpflichtet,  dieselben  der 
Berathung  zu  tibergeben. 

Die  Beschlussfassung  erfolgt,  vorbehaltlich  der  Bestimmungen  in 
den  Art.  5,  37  und  78,  mit  einfacher  Mehrheit.  Nicht  vertretene 
oder  nicht  instruirte  Stimmen  werden  nicht  gezahlt.  Bei  Stimmen- 
gleichheit  giebt  die  Prasidialstimme  den  Ausschlag. 

Bei  der  Beschlussfassung  iiber  eine  Angelegenheit,  welche  nach 
den  Bestimmungen  dieser  Verfassung  nicht  dem  ganzen  Reiche 
gemeinschaftlich  ist,  werden  die  Stimmen  nur  derjenigen  Bundes- 
staaten  gezahlt,  welchen  die  Angelegenheit  gemeinschaftlich  ist. 


Verfassung  des  Deutschen  Reicks.  291 

Art.  8.  Der  Bundesrath  bildet  aus  seiner  Mitte  dauernde  Aus- 
schiisse  1)  fur  das  Landheer  und  die  Festungen  ;  2)  fur  das  See- 
wesen;  3)  fur  Zoll-  und  Steuerwesen ;  4)  fiir  Handel  und  Verkehr; 
5)  fur  Eisenbahnen,  Post  und  Telegraphen ;  6)  fur  Justizwesen; 
7)  fiir  Rechnungswesen. 

In  jedem  dieser  Ausschiisse  werden  ausser  dem  Presidium  mindes- 
tens  vier  Bundesstaaten  vertreten  sein,  und  fuhrt  innerhalb  derselben 
jeder  Staat  nur  Eine  Stimme.  In  dem  Ausschuss  fiir  das  Landheer 
und  die  Festungen  hat  Bayern  einen  standigen  Sitz,  die  ubrigen  Mit- 
glieder  desselben,  sowie  die  Mitglieder  des  Ausschusses  fur  das  See- 
wesen  werden  vom  Kaiser  ernannt ;  die  Mitglieder  der  anderen  Aus- 
schiisse werden  von  dem  Bundesrathe  gewahlt.  Die  Zusammensetzung 
dieser  Ausschiisse  ist  fur  jede  Session  des  Bundesrathes  resp.  mit 
jedem  Jahre  zu  erneuern,  wobei  die  ausscheidenden  Mitglieder  wieder 
wahlbar  sind. 

Ausserdem  wird  im  Bundesrathe  aus  den  Bevollmachtigten  der 
Konigreiche  Bayern,  Sachsen  und  Wiirttemberg  und  zwei,  vom 
Bundesrathe  alljahrlich  zu  wahlenden  Bevollmachtigten  anderer 
Bundesstaaten  ein  Ausschuss  fur  die  auswartigen  Angelegenheiten 
gebildet,  in  welchem  Bayern  den  Vorsitz  fuhrt. 

Den  Ausschiissen  werden  die  zu  ihren  Arbeiten  nothigen  Beamten 
zur  Verfiigung  gestellt. 

Art.  9.  Jedes  Mitglied  des  Bundesrathes  hat  das  Recht,  im  Reich- 
stage  zu  erscheinen  und  muss  daselbst  auf  Verlangen  jederzeit  gehort 
werden,  um  die  Ansichten  seiner  Regierung  zu  vertreten,  auch  dann, 
wenn  dieselben  von  der  Majoritat  des  Bundesrathes  nicht  adoptirt 
worden  sind.  Niemand  kann  gleichzeitig  Mitglied  des  Bundesrathes 
und  des  Reichstages  sein. 

Art.  10.  Dem  Kaiser  liegt  es  ob,  den  Mitgliedern  des  Bundes- 
rathes den  ublichen  diplomatischen  Schutz  zu  gewahren. 


IV.   Prasidium. 

Art.  11.  Das  Prasidium  des  Bundes  steht  dem  Konige  von  Preussen 
zu,  welcher  den  Namen  Deutscher  Kaiser  fiihrt.  Der  Kaiser  hat  das 
Reich  volkerrechtlich  zu  vertreten,  im  Namen  des  Reichs  Krieg  zu 
erkliiren  und  Frieden  zu  schiiessen,  Biindnisse  und  andere  Vertrage 
mit  fremden  Staaten  einzugehen,  Gesandte  zu  beglaubigen  und  zu 
empfangen. 


292  Appendix. 

Zur  Erklarung  des  Krieges  im  Namen  des  Reichs  ist  die  Zustim- 
mung  des  Bundesrathes  erforderlich,  es  sei  denn,  dass  ein  Angriff  auf 
das  Bundesgebiet  oder  dessen  Kiisten  erfolgt. 

Insoweit  die  Vertrage  mit  fremden  Staaten  sich  auf  solche  Gegen- 
stande  beziehen,  welche  nach  Art.  4  in  den  Bereich  der  Reichsge- 
setzgebung  gehoren,  ist  zxx  ihrem  Abschluss  die  Zustimmung  des 
Bundesrathes  und  zu  ihrer  Gultigkeit  die  Genehmigung  des  Reich- 
stages  erforderlich. 

Art.  12.  Dem  Kaiser  steht  es  zu,  den  Bundesrath  und  den  Reich- 
stag zu  berufen,  zu  eroffnen,  zu  vertagen  und  zu  schliessen. 

Art.  13.  Die  Berufung  des  Bundesrathes  und  des  Reichstages 
findet  alljahrlich  statt  und  kann  der  Bundesrath  zur  Vorbereitung  der 
Arbeiten  ohne  den  Reichstag,  letzterer  aber  nicht  ohne  den  Bundes- 
rath berufen  werden. 

Art.  14.  Die  Berufung  des  Bundesrathes  muss  erfolgen,  sobald  sie 
von  einem  Drittel  der  Stimmenzahl  verlangt  wird. 

Art.  15.  Der  Vorsitz  im  Bundesrathe  und  die  Leitung  der  Ge- 
schiifte  steht  dem  Reichskanzler  zu,  welcher  vom  Kaiser  zu  ernen- 
nen  ist. 

Der  Reichskanzler  kann  sich  durch  jedes  andere  Mitglied  des 
Bundesrathes  vermoge  schriftlicher  Substitution  vertreten  lassen. 

Art.  16.  Die  erforderlichen  Vorlagen  werden  nach  Massgabe  der 
Beschliisse  des  Bundesrathes  im  Namen  des  Kaisers  an  den  Reich- 
stag gebracht,  wo  sie  durch  Mitglieder  des  Bundesrathes  oder  durch 
besondere  von  letzterem  zu  ernennende  Kommissarien  vertreten 
werden. 

Art.  17.  Dem  Kaiser  steht  die  Ausfertigung  und  Verkiindigung 
der  Reichsgesetze  und  die  Ueberwachung  der  Ausfuhrung  derselben 
zu.  Die  Anordnungen  und  Verfiigungen  des  Kaisers  werden  im 
Namen  des  Reichs  erlassen  und  bediirfen  zu  ihrer  Gultigkeit  der 
Gegenzeichnung  des  Reichskanzlers,  welcher  dadurch  die  Verant- 
wortlichkeit  iibernimmt. 

Art.  18.  Der  Kaiser  ernennt  die  Reichsbeamten,  lasst  dieselben 
fur  das  Reich  vereidigen  und  verftigt  erforderlichen  Falles  deren 
Entlassung. 

Den  zu  einem  Reichsamte  berufenen  Beamten  eines  Bundes- 
staates  stehen,  sofern  nicht  vor  ihrem  Eintritt  in  den  Reichsdienst 
im  Wege  der  Reichsgesetzgebung  etwas  Anderes  bestimmt  ist,  dem 
Reiche  gegeniiber  diejenigen  Rechte  zu,  welche  ihnen  in  ihrem 
Heimathslande  aus  ihrer  dienstlichen  Stellung  zugestanden  hatten. 


Verfassung  des  Deutschen  Reichs.  293 

Art.  19.  Wenn  Bundesglieder  ihre  verfassungsmassigen  Bundes- 
pflichten  nicht  erflillen,  konnen  sie  dazu  im  Wege  der  Exekution 
angehalten  werden.  Diese  Exekution  ist  vom  Bundesrathe  zu  be- 
schliessen  und  vom  Kaiser  zu  vollstrecken. 


V.   Reichstag. 

Art.  20.  Der  Reichstag  geht  aus  allgemeinen  und  direkten  Wah- 
len  mit  geheimer  Abstimmung  hervor. 

Bis  zu  der  gesetzlichen  Regelung,  welche  im  §  5  des  Wahlgesetzes 
v.  31.  Mai  1869  (BGB.  1869  S.  145)  vorbehalten  ist,  werden  in 
Bayern  48,  in  Wtirttemberg  17,  in  Baden  14,  in  Hessen  siidlich  des 
Main  6  Abgeordnete  gewahlt,  und  betragt  demnach  die  Gesammtzahl 
der  Abgeordneten  382. 

Art.  21.  Beamte  bedtirfen  keines  Urlaubs  zum  Eintritt  in  den 
Reichstag. 

Wenn  ein  Mitglied  des  Reichstages  ein  besoldetes  Reichsamt  oder 
in  einem  Bundesstaate  ein  besoldetes  Staatsamt  annimmt  oder  im 
Reichs-  oder  Staatsdienste  in  ein  Amt  eintritt,  mit  welchem  ein 
hoherer  Rang  oder  ein  hoheres  Gehalt  verbunden  ist,  so  verliert  es 
Sitz  und  Stimme  in  dem  Reichstag  und  kann  seine  Stelle  in  dem- 
selben  nur  durch  neue  Wahl  wieder  erlangen. 

Art.  22.    Die  Verhandlungen  des  Reichstages  sind  offentlich. 

Wahrheitsgetreue  Berichte  tiber  Verhandlungen  in  den  offentlichen 
Sitzungen  des  Reichstages  bleiben  von  jeder  Verantwortlichkeit  frei. 

Art.  23.  Der  Reichstag  hat  das  Recht,  innerhalb  der  Kompetenz 
des  Reichs  Gesetze  vorzuschlagen  und  an  ihn  gerichtete  Petitionen 
dem  Bundesrathe  resp.  Reichskanzler  zu  iiberweisen. 

Art.  24.  Die  Legislaturperiode  des  Reichstages  dauert  funf1  Jahre. 
Zur  Auflosung  des  Reichstages  wahrend  derselben  ist  ein  Beschluss 
des  Bundesrathes  unter  Zustimmung  des  Kaisers  erforderlich. 

Art.  25.  Im  Falle  der  Auflosung  des  Reichstages  rmissen  inner- 
halb eines  Zeitraumes  von  60  Tagen  nach  derselben  die  Wahler  und 
innerhalb  eines  Zeitraumes  von  90  Tagen  nach  der  Auflosung  der 
Reichstag  versammelt  werden. 

Art.  26.  Ohne  Zustimmung  des  Reichstages  darf  die  Vertagung 
desselben  die  Frist  von  30  Tagen  nicht  iibersteigen  und  wahrend 
derselben  Session  nicht  wiederholt  werden. 

1  Reichsgesetzblatt.     1 888.    S.  HO. 


294  Appendix. 

Art.  27.  Der  Reichstag  priift  die  Legitimation  seiner  Mitglieder 
und  entscheidet  dariiber.  Er  regelt  seinen  Geschaftsgang  und  seine 
Disziplin  durch  eine  Geschafts-Ordnung  und  erwahlt  seinen  Prasi- 
denten,  seine  Vizeprasidenten  und  Schriftfiihrer. 

Art.  28.  Der  Reichstag  beschliesst  nach  absoluter  Stimmenmehr- 
heit.  Zur  Giiltigkeit  der  Beschlussfassung  ist  die  Anwesenheit  der 
Mehrheit  der  gesetzlichen  Anzahl  der  Mitglieder  erforderlich. 

Bei  der  Beschlussfassung  iiber  eine  Angelegenheit,  welche  nach 
den  Bestimmungen  dieser  Verfassung  nicht  dem  ganzen  Reiche  ge- 
meinschaftlich  ist,  werden  die  Stimmen  nur  derjenigen  Mitglieder 
gezahlt,  die  in  Bundesstaaten  gewahlt  sind,  welchen  die  Angelegen- 
heit gemeinschaftlich  ist. 

ElNZIGER   ARTIKEL. 

Der  Absatz  2  des  Art.  28  der  Reichsverfassung  ist  aufgehoben. 
Urkundlich  unter  Unserer  Hochsteigenhandigen  Unterschrift  und  beigedruck- 
tem  Kaiserl.    Insiegel. 

(L.  S.)  WlLHELM. 

Gegeben  Berlin,  den  24,  Febr.  1873.  _..  _.  , 

'3  Furst  v.  Bismarck. 

Art.  29.  Die  Mitglieder  des  Reichstages  sind  Vertreter  des  ge- 
sammten  Volkes  und  an  Auftrage  und  Instruktionen  nicht  gebunden. 

Art.  30.  Kein  Mitglied  des  Reichstages  darf  zu  irgend  einer  Zeit 
wegen  seiner  Abstimmung  oder  wegen  der  in  Auslibung  seines  Be- 
rufes  gethanen  Aeusserungen  gerichtlich  oder  disziplinarisch  verfolgt 
oder  sonst  ausserhalb  der  Versammlung  zur  Verantwortung  gezogen 
werden. 

Art.  31.  Ohne  Genehmigung  des  Reichstages  kann  kein  Mitglied 
desselben  wahrend  der  Sitzungsperiode  wegen  einer  mit  Strafe  be- 
drohten  Handlung  zur  Untersuchung  gezogen  oder  verhaftet  werden, 
ausser  wenn  es  bei  Auslibung  der  That  oder  im  Laufe  des  nachstfol- 
genden  Tages  ergriffen  wird. 

Gleiche  Genehmigung  ist  bei  einer  Verhaftung  wegen  Schulden 
erforderlich. 

Auf  Verlangen  des  Reichstages  wird  jedes  Strafverfahren  gegen 
ein  Mitglied  desselben  und  jede  Untersuchungs-  oder  Civilhaft  fur 
die  Dauer  der  Sitzungsperiode  aufgehoben. 

Art.  32.  Die  Mitglieder  des  Reichstages  diirfen  als  solche  keine 
Besoldung  oder  Entschadigung  beziehen. 


Verfassung  des  Deutschen  Reichs.  295 

VI.    ZOLL-  UND    HANDELSWESEN. 

Art.  33.  Deutschland  bildet  ein  Zoll-  und  Handelsgebiet,  umge- 
ben  von  gemeinschaftlicher  Zollgrenze.  Ausgeschlossen  bleiben  die 
wegen  ihrer  Lage  zur  Einschliessung  in  die  Zollgrenze  nicht  geeig- 
neten  einzelnen  Gebietstheile. 

Alle  Gegenstande,  welche  im  freien  Verkehr  eines  Bundesstaates 
befindlich  sind,  konnen  in  jeden  anderen  Bundesstaat  eingefiihrt  und 
diirfen  in  letzterem  einer  Abgabe  nur  insoweit  untervvorfen  werden, 
als  daselbst  gleichartige  inlandische  Erzeugnisse  einer  inneren  Steuer 
unterliegen. 

Art.  34.  Die  Hansestadte  Bremen  und  Hamburg  mit  einem  dem 
Zweck  entsprechenden  Bezirke  ihres  oder  des  umliegenden  Gebietes 
bleiben  als  Freihafen  ausserhalb  der  gemeinschaftlichen  Zollgrenze, 
bis  sie  ihren  Einschluss  in  dieselbe  beantragen. 

Art.  35.  Das  Reich  ausschliesslich  hat  die  Gesetzgebung  iiber  das 
gesammte  Zollwesen,  iiber  die  Besteuerung  des  im  Bundesgebiete 
gewonnenen  Salzes  und  Tabaks,  bereiteten  Branntvveins  und  Bieres 
und  aus  Riiben  oder  anderen  inlandischen  Erzeugnissen  dargestellten 
Zuckers  und  Syrups,  iiber  den  gegenseitigen  Schutz  der  in  den  ein- 
zelnen Bundesstaaten  erhobenen  Verbrauchsabgaben  gegen  Hinter- 
ziehungen,  sowie  iiber  die  Massregeln,  welche  in  den  Zollausschliissen 
zur  Sicherung  der  gemeinsamen  Zollgrenze  erforderlich  sind. 

In  Bayern,  Wtirttemberg  und  Baden  bleibt  die  Besteuerung  des 
inlandischen  Branntweins  und  Bieres  der  Landesgesetzgebung  vor- 
behalten.  Die  Bundesstaaten  werden  jedoch  ihr  Bestreben  darauf 
richten,  eine  Uebereinstimmung  der  Gesetzgebung  iiber  die  Besteu- 
erung auch  dieser  Gegenstande  herbeizufuhren. 

Art.  36.  Die  Erhebung  und  Verwaltung  der  Zolle  und  Verbrauchs- 
steuern  (Art.  35)  bleibt  jedem  Bundesstaate,  soweit  derselbe  sie 
bisher  ausgeiibt  hat,  innerhalb  seines  Gebietes  iiberlassen. 

Der  Kaiser  uberwacht  die  Einhaltung  des  gesetzlichen  Verfahrens 
durch  Reichsbeamte,  welche  er  den  Zoll-  oder  Steueramtern  und 
den  Direktivbehorden  der  einzelnen  Staaten,  nach  Vernehmung  des 
Ausschusses  des  Bundesrathes  fur  Zoll-  und  Steuerwesen,  beiordnet. 

Die  von  diesen  Beamten  iiber  Mangel  bei  der  Ausfuhrung  der 
gemeinschaftlichen  Gesetzgebung  (Art.  35)  gemachten  Anzeigen 
werden  dem  Bundesrathe  zur  Beschlussnahme  vorgelegt. 

Art.  37.  Bei  der  Beschlussnahme  iiber  die  zur  Ausfuhrung  der 
gemeinschaftlichen  Gesetzgebung  (Art.  35)  dienenden  Verwaltungs- 


296  Appendix. 

vorschriften  und  Einrichtungen  giebt  die  Stimme  des  Presidiums  als- 
dann  den  Ausschlag,  wenn  sie  sich  fur  Aufrechthaltung  der  bestehen- 
den  Vorschrift  oder  Einrichtung  ausspricht. 

Art.  38.  Der  Ertrag  der  Zolle  und  der  anderen  in  Art.  35  bezeich- 
neten  Abgaben,  letzterer,  soweit  sie  der  Reichsgesetzgebung  unter- 
liegen,  fliesst  in  die  Reichskasse. 

Dieser  Ertrag  besteht  aus  der  gesammten  von  den  Zollen  und 
den  iibrigen  Abgaben  aufgekommenen  Einnahme  nach  Abzug : 

1)  der   auf  Gesetzen   oder   Allgemeinen  Verwaltungsvorschriften 
beruhenden  Steuervergiitungen  und  Ermassigungen, 

2)  der  Rlickerstattungen  fiir  unrichtige  Erhebungen, 

3)  der  Erhebungs-  und  Venvaltungskosten,  und  zwar : 

a.  bei  den  Zollen  der  Kosten,  welche  an  den  gegen  das 
Ausland  gelegenen  Grenzen  und  in  dem  Grenzbezirke  fiir 
den  Schutz  und  die  Erhebuug  der  Zolle  erforderlich  sind  ; 

b.  bei  der  Salzsteuer  der  Kosten,  welche  zur  Besoldung  der 
mit  Erhebung  und  Kontrolirung  dieser  Steuer  auf  den 
Salzvverken  beauftragten  Beamten  aufgewendet  werden, 

c.  bei  der  Rubenzuckersteuer  und  Tabakssteuer  der  Ver- 
gtitung,  welche  nach  den  jeweiligen  Beschliissen  des 
Bundesrathes  den  einzelnen  Bundesregierungen  fiir  die 
Kosten  der  Verwaltung  dieser  Steuern  zu  gewahren  ist, 

d.  bei  den  iibrigen  Steuern  mit  fiinfzehn  Prozent  der  Ge- 
sammteinnahme. 

Die  ausserhalb  der  gemeinschaftlichen  Zollgrenze  liegenden  Ge- 
biete  tragen  zu  den  Ausgaben  des  Reichs  durch  Zahlung  eines  Aver- 
sums  bei. 

Bayern,  Wiirttemberg  und  Baden  haben  an  dem  in  die  Reichs- 
kasse fiiessenden  Ertrage  der  Steuern  von  Branntwein  und  Bier 
und  an  dem  diesem  Ertrage  entsprechenden  Theile  des  vorstehend 
erwahnten  Aversums  keinen  Theil. 

Art.  39.  Die  von  den  Erhebungsbehorden  der  Bundesstaaten  nach 
Ablauf  eines  jeden  Vierteljahres  aufzustellenden  Quartal-Extrakte 
und  die  nach  dem  Jahres-  und  Biicherschlusse  aufzustellenden  Final- 
abschliisse  iiber  die  im  Laufe  des  Vierteljahres  beziehungsweise  wah- 
rend  des  Rechnungsjahres  fallig  gewordenen  Einnahmen  an  Zollen 
und  nach  Art.  38  zur  Reichskasse  fiiessenden  Verbrauchsabgaben 
werden  von  den  Direktivbehorden  der  Bundesstaaten,  nach  vorange- 
gangener  Priifung,  in  Hauptiibersichten  zusammengestellt,  in  welchen 
jede  Abgabe  gesondert  nachzuweisen  ist,  und  es  werden  diese  Ueber- 


Verfassung  des  Deutschen  Reichs.  297 

sichten  an  den  Ausschuss  des  Bundesrathes  fur  das  Rechnungswesen 
eingesandt. 

Der  letztere  stellt  aus  Grund  dieser  Uebersichten  von  drei  zu  drei 
Monaten  den  von  der  Kasse  jedes  Bundesstaates  der  Reichskasse 
schuldigen  Betrag  vorlaufig  fest  und  setzt  von  dieser  Feststellung  den 
Bundesrath  und  die  Bundesstaaten  in  Kenntniss,  legt  auch  alljahrlich 
die  schliessliche  Feststellung  jener  Betrage  mit  seinen  Bemerkungen 
dem  Bundesrathe  vor.  Der  Bundesrath  beschliesst  liber  diese  Fests- 
stellung. 

Art.  40.  Die  Bestimmungen  in  dem  Zollvereinigungsvertrage  vom 
8.  Juli  1867  bleiben  in  Kraft,  soweit  sie  nicht  durch  die  Vorschriften 
dieser  Verfassung  abgeandert  sind  und  so  lange  sie  nicht  auf  dem  im 
Art.  7,  beziehungsvveise  78  bezeichneten  Wege  abgeandert  werden. 

Art.  41.  Eisenbahnen,  welche  im  Interesse  der  Vertheidigung 
Deutschlands  oder  im  Interesse  des  gemeinsamen  Verkehrs  fur  noth- 
wendig  erachtet  werden,  konnen  kraft  eines  Reichsgesetzes  auch 
gegen  den  Widerspruch  der  Bundesglieder,  deren  Gebiet  die  Eisen- 
bahnen durchschneiden,  unbeschadet  der  Landeshoheitsrechte,  fur 
Rechnung  des  Reichs  angelegt  oder  an  Privatunternehmer  zur  Aus- 
fuhrung  koncessionirt  und  mit  dem  Expropriationsrechte  ausgestattet 
werden. 

Jede  bestehende  Eisenbahnverwaltung  ist  verpflichtet,  sich  den  An- 
schluss neu  angelegter  Eisenbahnen  auf  Kosten  der  letzteren  gefallen 
zu  lassen. 

Die  gesetzlichen  Bestimmungen,  welche  bestehenden  Eisenbahn- 
Unternehmungen  ein  Widerspruchsrecht  gegen  die  Anlegung  von 
Parallel-  oder  Konkurrenzbahnen  einraumen,  werden,  unbeschadet 
bereits  erworbener  Rechte,  fur  das  ganze  Reich  hierdurch  aufgeho- 
ben.  Ein  solches  Widerspruchsrecht  kann  auch  in  den  kiinftig  zu 
ertheilenden  Koncessionen  nicht  weiter  verliehen  werden. 

Art.  42.  Die  Bundesregierungen  verpflichten  sich,  die  Deutschen 
Eisenbahnen  im  Interesse  des  allgemeinen  Verkehrs  wie  ein  einheit- 
liches  Netz  verwalten  und  zu  diesem  Behuf  auch  die  neu  herzustel- 
lenden  Bahnen  nach  einheitlichen  Normen  anlegen  und  ausrusten  zu 
lassen. 

Art.  43.  Es  sollen  demgemass  in  thunlichster  Beschleunigung  iiber- 
einstimmende  Betriebseinrichtungen  getroffen,  insbesondere  gleiche 
Bahnpolizei-Reglements  eingefuhrt  werden.  Das  Reich  hat  dafiir 
Sorge  zu  tragen,  dass  die  Eisenbahnvervvaltungen  die  Bahnen  jeder- 
zeit  in  einem  die  nothige  Sicherheit  gewahrenden  baulichen  Zustande 


298  Appendix. 

erhalten  und  dieselben  mit  Betriebsmaterial  so  ausriisten,  wie  das 
Verkehrsbedurfniss  es  erheischt. 

Art.  44.  Die  Eisenbahnverwaltungen  sind  verpflichtet,  die  fur  den 
durchgehenden  Verkehr  und  zur  Herstellung  ineinander  greifender 
Fahrplane  nothigen  Personenziige  mit  entsprechender  Fahrgeschwin- 
digkeit,  desgleichen  die  zur  Bewaltigung  des  Giiterverkehrs  nothigen 
Gliterztige  einzufiihren,  auch  direkte  Expedition  im  Personen-  und 
Gtiterverkehr,  unter  Gestattung  des  Ueberganges  der  Transportmit- 
tel  von  einer  Bahn  auf  die  andere,  gegen  die  iibliche  Vergiitung  ein- 
zurichten. 

Art.  45.  Dem  Reiche  steht  die  Kontrole  iiber  das  Tarifwesen  zu. 
Dasselbe  wird  namentlich  dahin  wirken  :  1)  dass  baldigst  auf  alien 
Deutschen  Eisenbahnen  iibereinstimmende  Betriebsreglements  ein- 
gefiihrt  werden  ;  2 )  dass  die  moglichste  Gleichmassigkeit  und  Herab- 
setzung  der  Tarife  erzielt,  insbesondere,  dass  bei  grosseren  Entfer- 
nungen  fur  den  Transport  von  Kohlen,  Koaks,  Holz,  Erzen,  Steinen, 
Salz,  Roheisen,  Dungungsmitteln  und  ahnlichen  Gegenstanden  ein 
dem  Bediirfniss  der  Landvvirthschaft  und  Industrie  entsprechender 
ermassigter  Tarif,  und  zwar  zunachst  thunlichst  der  Einpfennig- 
Tarif  eingefiihrt  werde. 

Art.  46.  Bei  eintretenden  Nothstanden,  insbesondere  bei  unge- 
wohnlicher  Theuerung  der  Lebensmittel,  sind  die  Eisenbahnverwal- 
tungen verpflichtet,  ftir  den  Transport,  namentlich  von  Getreide, 
Mehl,  Hiilsenfruchten  und  Kartoffeln,  zeitvveise  einen  dem  Bedtirf- 
riss  entsprechenden,  von  dem  Kaiser  auf  Vorschlag  des  betreffenden 
Bundesraths-Ausschusses  festzustellenden,  niedrigen  Spezialtarif  ein- 
zufiihren, welcher  jedoch  nicht  unter  den  niedriesten  auf  der  betreff- 
enden Bahn  fiir  Rohprodukte  geltenden  Satz  herabgehen  darf. 

Die  vorstehend,  sowie  die  in  den  Art.  42  bis  45  getroffenen  Be- 
stimmungen  sind  auf  Bayern  nicht  anwendbar. 

Dem  Reiche  steht  jedoch  auch  Bayern  gegeniiber  das  Recht  zu, 
im  Wege  der  Gesetzgebung  einheitliche  Normen  fiir  die  Konstruk- 
tion  und  Ausriistung  der  fiir  die  Landesvertheidigung  wichtigen 
Eisenbahnen  aufzustellen. 

Art.  47.  Den  Anforderungen  der  Behorden  des  Reichs  in  Betreff 
der  Benutzung  der  Eisenbahnen  zum  Zweck  der  Vertheidigung 
Deutschlands  haben  sammtliche  Eisenbahnverwaltungen  unweigerlich 
Folge  zu  leisten.  Insbesondere  ist  das  Militair  und  alles  Kriegs- 
material  zu  gleichen  ermassigten  Satzen  zu  befordern. 


Verfassung  des  Deutschen  Reichs.  299 

VIII.   Post-  und  Telegraphenwesen. 

Art.  48.  Das  Postwesen  und  das  Telegraphenwesen  werden  fur 
das  gesammte  Gebiet  des  Deutschen  Reichs  als  einheitliche  Staats- 
verkehrs-Anstalten  eingerichtet  und  vervvaltet. 

Die  im  Art.  4  vorgesehene  Gesetzgebung  des  Reichs  in  Post-  und 
Telegraphen-Angelenheiten  erstreckt  sich  nicht  auf  diejenigen  Gegen- 
stande,  deren  Regelung  nach  den  in  der  Norddeutschen  Post-  und 
Telegraphen-Verwaltung  massgebend  gewesenen  Grundsatzen  der 
reglementarischen  Festsetzung  oder  administrativen  Anordnung  iiber- 
lassen  ist. 

Art.  49.  Die  Einnahmen  des  Post-  und  Telegraphenvvesens  sind 
fur  das  ganze  Reich  gemeinschaftlich.  Die  Ausgaben  werden  aus 
den  gemeinschaftlichen  Einnahmen  bestritten.  Die  Ueberschiisse 
fliessen  in  die  Reichskasse  (Abschnitt  XII.). 

Art.  50.  Dem  Kaiser  gehort  die  obere  Leitung  der  Post-und  Tele- 
graphenverwaltung  an.  Die  von  ihm  bestellten  Behorden  haben  die 
Pflicht  und  das  Recht,  daftir  zu  sorgen,  dass  Einheit  in  der  Organi- 
sation der  Verwaltung  und  im  Betriebe  des  Dienstes,  sowie  in  der 
Qualifikation  der  Beamten  hergestellt  und  erhalten  wird. 

Dem  Kaisersteht  der  Erlass  der  reglementarischen  Festsetzungen 
und  allgemeinen  administrativen  Anordnungen,  sowie  die  ausschliess- 
liche  Wahrnehmung  der  Beziehungen  zu  anderen  Post-  und  Tele- 
graphenverwaltungen  zu. 

Sammtliche  Beamte  der  Post-  und  Telegraphenverwaltung  sind 
verpflichtet,  den  Kaiserlichen  Anordnungen  Folge  zu  leisten.  Diese 
Verpflichtung  ist  in  den  Diensteid  aufzunehmen. 

Die  Anstellung  der  bei  den  Verwaltungsbehorden  der  Post  und 
Telegraphie  in  den  verschiedenen  Bezirken  erforderlichen  oberen 
Beamten  (z.  B.  der  Direktoren,  Rathe,  Ober-Inspektoren)  ferner  die 
Anstellung  der  zur  Wahrnehmung  des  Aufsichts-  u.  s.  w.  Dienstes  in 
den  einzelnen  Bezirken  als  Organe  der  erwahnten  Behorden  fungiren- 
den  Post-  und  Telegraphenbeamten  (z.  B.  Inspektoren,  Kontroleure) 
geht  fur  das  ganze  Gebiet  des  Deutschen  Reichs  vom  Kaiser  aus, 
welchem  diese  Beamten  den  Diensteid  leisten.  Den  einzelnen  Lan- 
desregierungen  wird  von  den  in  Rede  stehenden  Ernennungen,  so- 
weit  dieselben  ihre  Gebiete  betreffen,  Behufs  der  landesherrlichen 
Bestatigung  und  Publikation  rechtzeitig  Mittheilung  gemacht  werden. 

Die  anderen  bei  den  Verwaltungsbehorden  der  Post  und  Tele- 
graphie erforderlichen  Beamten,  sowie  alle  fur  den  lokalen  und  tech- 


300  Appendix. 

nischen  Betrieb  bestimmten,  mithin  bei  den  eigentlichen  Betrieb- 
stellen  fungirenden  Beamten  u.  s.  w.  werden  von  den  betreffenden 
Landesregierungen  angestellt. 

Wo  eine  selbststandige  Landespost-  resp.  Telegraphenverwaltung 
nicht  besteht,  entscheiden  die  Bestimmungen  der  besonderrn  Vertrage. 

Art.  51.  Bei  Ueberweisung  des  Ueberschusses  der  Postverwaltung 
fiir  allgemeine  Reichszwecke  (Art.  49)  soil,  in  Betracht  der  bisheri- 
gen  Verschiedenheit  der  von  den  Landes-Postvenvaltungen  der  ein- 
zelnen  Gebiete  erzielten  Reineinnahmen,  zum  Zwecke  einer  ent» 
sprechenden  Ausgleichung  wahrend  der  unten  festgesetzten  Ueber- 
gangszeit  folgendes  Verfahren  beobachtet  werden. 

Aus  den  Postiiberschussen,  vvelche  in  den  einzelnen  Postbezirken 
wahrend  der  fiinf  Jahre  1861  bis  1865  aufgekommen  sind,  wird 
ein  durchschnittlicher  Jahresiiberschuss  berechnet,  und  der  Antheil, 
welchen  jeder  einzelne  Postbezirk  an  dem  fiir  das  gesammte  Gebiet 
des  Reichs  sich  darnach  herausstellenden  Posttiberschusse  gehabt 
hat,  nach  Prozenten  festgestellt. 

Nach  Massgabe  des  auf  diese  Weise  festgestellten  Verhaltnisses 
werden  den  einzelnen  Staaten  wahrend  der  auf  ihren  Eintritt  in  die 
Reichs-Postverwaltung  folgenden  acht  Jahre  die  sich  fiir  sie  aus  den 
im  Reiche  aufkommenden  Postiiberschussen  ergebenden  Quoten  auf 
ihre  sonstigen  Beitmge  zu  Reichszwecken  zu  Gute  gerechnet. 

Nach  Ablauf  der  acht  Jahre  hort  jene  Unterscheidung  auf,  und 
fliessen  die  Posttiberschiisse  in  ungetheilter  Aufrechnung  nach  dem 
im  Art.  49  enthaltenen  Grundsatz  der  Reichskasse  zu. 

Von  der  wahrend  der  vorgedachten  acht  Jahre  fiir  die  Hansestadte 
sich  herausstellenden  Quote  des  Postiiberschusses  wird  alljahrlich  vor- 
weg  die  Halfte  dem  Kaiser  zur  Disposition  gestellt  zu  dem  Zwecke, 
daraus  zunachst  die  Kosten  fiir  die  Herstellung  normaler  Postein- 
richtungen  in  den  Hansestadten  zu  bestreiten. 

Art.  52.  Die  Bestimmungen  in  den  vorstehenden  Art.  48  bis  51 
finden  auf  Bayern  und  Wiirttemberg  keine  Anwendung.  An  ihrer 
Stelle  gelten  fiir  beide  Bundesstaaten  folgende  Bestimmungen. 

Dem  Reiche  ausschliesslich  steht  die  Gesetzgebung  iiber  die  Vor- 
rechte  der  Post  und  Telegraphie,  iiber  die  rechtlichen  Verhaltnisse 
beider  Anstalten  zum  Publikum,  iiber  die  Portofreiheiten  und  das 
Posttaxwesen,  jedoch  ausschliesslich  der  reglementarischen  und  Tarif- 
bestimmungen  fiir  den  internen  Verkehr  innerhalb  Bayerns,  bezie- 
hungsweise  Wiirttembergs,  sowie,  unter  gleicher  Beschrankung,  die 
Feststellung  der  Gebiihren  fiir  die  telegraphische  Korrespondenz  zu. 


Verfassung  des  Deutschen  Reichs.  301 

Ebenso  steht  dem  Reiche  die  Regelung  des  Post-  und  Telegraph- 
enverkehrs  mit  dem  Auslande  zu,  ausgenommen  den  eigenen  unmit- 
telbaren  Verkehr  Bayerns,  beziehungsweise  VViirttembergs  mit  seinen 
dem  Reiche  nicht  angehorenden  Nachbarstaaten,  wegen  dessen 
Regelung  es  bei  der  Bestimmung  im  Art.  49  des  Postvertrages  v. 
23.  Nov.  1867  bewendet. 

An  den  zur  Reichskasse  fliessenden  Einnahmen  des  Post-  und 
Telegraphenwesens  haben  Bayern  und  Wiirttemberg  keinen  Theil. 


IX.   Marine  und  Schifffahrt. 

Art.  53.  Die  Kriegsmarine  des  Reichs  ist  eine  einheitliche  unter 
dem  Oberbefehl  des  Kaisers.  Die  Organisation  und  Zusammen- 
setzung  derselben  liegt  dem  Kaiser  ob,  welcher  die  Offiziere  und 
Beamten  der  Marine  ernennt,  und  fur  welchen  dieselben  nebst  den 
Mannschaften  eidlich  in  Pflicht  zu  nehmen  sind. 

Der  Kieler  Hafen  und  der  Jadehafen  sind  Reichskriegshafen. 

Der  zur  Griindung  und  Erhaltung  der  Kriegsflotte  und  der  damit 
zusammenhangenden  Anstalten  erforderliche  Aufwand  wird  aus  der 
Reichskasse  bestritten. 

Die  gesammte  seemannische  Bevolkerung  des  Reichs,  einschliess- 
lich  des  Maschinenpersonals  und  der  Schiffshandwerker,  ist  vora 
Dienste  im  Landheere  befreit,  dagegen  zum  Dienste  in  der  Kaiser- 
lichen  Marine  verpflichtet. 

Die  Vertheilung  des  Ersatzbedarfes  findet  nach  Massgabe  der  vor- 
handenen  seemannischen  Bevolkerung  statt,  und  die  hiernach  von 
jedem  Staate  gestellte  Quote  kommt  auf  die  Gestellung  zum  Land- 
heere in  Abrechnung. 

Art.  54.  Die  Kauffahrteischiffe  aller  Bundesstaaten  bilden  eine 
einheitliche  Handelsmarine. 

Das  Reich  hat  das  Verfahren  zur  Ermittelung  der  Ladungsfahigkeit 
der  Seeschiffe  zu  bestimmen,  die  Ausstellung  der  Messbriefe,  sowie 
der  Schiffscertifikate  zu  regeln  und  die  Bedingungen  festzustellen,  von 
welchen  die  Erlaubniss  zur  Fiihrung  eines  Seeschiffes  abhangig  ist. 

In  den  Seehafen  und  auf  alien  nattirlichen  und  kiinstlichen  VVas- 
serstrassen  der  einzelnen  Bundesstaaten  werden  die  Kauffahrtei- 
schiffe sammtlicher  Bundesstaaten  gleichmassig  zugelassen  und  be- 
handelt.  Die  Abgaben,  welche  in  den  Seehafen  von  den  Seeschiffen 
oder  deren  Ladungen  fur  die  Benutzung  der  Schifffahrtsanstalten  er- 


302  Appendix. 

hoben  werden,  diirfen  die  zur  Unterhaltung  und  gewohnlichen  Her- 
stellung  dieser  Anstalten  erforderlichen  Kosten  nicht  iibersteigen. 

Auf  alien  nattirlichen  Wasserstrassen  dtirfen  Abgaben  nur  fur  die 
Benutzung  besonderer  Anstalten,  die  zur  Erleichterung  des  Verkehrs 
bestimmt  sind,  erhoben  werden.  Diese  Abgaben,  sowie  die  Abgaben 
fur  die  Befahrung  solcher  kiinstlichen  Wasserstrassen,  welche  Staats- 
eigenthum  sind,  diirfen  die  zur  Unterhaltung  und  gewohnlichen  Her- 
stellung  der  Anstalten  und  Anlagen  erforderlichen  Kosten  nicht  iiber- 
steigen. Auf  die  Flosserei  finden  diese  Bestimmungen  insoweit  An- 
wendung,  als  dieselbe  auf  schiffbaren  Wasserstrassen  betrieben  wird. 

Auf  fremde  Schiffe  oder  deren  Ladungen  andere  oder  hohere  Ab- 
gaben zu  legen,  als  von  den  Schiffen  der  Bundesstaaten  oder  deren 
Ladungen  zu  entrichten  sind,  steht  keinem  Einzelstaate,  sondern  nur 
dem  Reiche  zu. 

Art.  55.  Die  Flagge  der  Kriegs-  und  Handelsmarine  ist  schwarz- 
weiss-roth. 

X.     KONSULATWESEN. 

Art.  56.  Das  gesammte  Konsulatwesen  des  Deutschen  Reichs 
steht  unter  der  Aufsicht  das  Kaisers,  welcher  die  Konsuln,  nach 
Vernehmung  des  Ausschusses  des  Bundesrathes  fur  Handel  und 
Verkehr,  anstellt. 

In  dem  Amtsbezirk  der  Deutschen  Konsuln  diirfen  neue  Landes- 
konsulate  nicht  errichtet  werden.  Die  Deutschen  Konsuln  iiben  fur 
die  in  ihrem  Bezirk  nicht  vertretenen  Bundesstaaten  die  Funktionen 
eines  Landeskonsuls  aus.  Die  sammtlichen  bestehenden  Landeskon- 
sulate  werden  aufgehoben,  sobald  die  Organisation  der  Deutschen 
Konsulate  dergestalt  vollendet  ist,  dass  die  Vertretung  der  Einzel- 
interessen  aller  Bundesstaaten  als  durch  die  Deutschen  Konsulate 
gesichert  von  dem  Bundesrathe  annerkannt  wird. 

XI.  Reichskriegswesen. 

Art.  57.  Jeder  Deutsche  ist  wehrpflichtig  und  kann  sich  in  Ausii- 
bung  dieser  Pfiicht  nicht  vertreten  lassen. 

Art.  58.  Die  Kosten  und  Lasten  des  gesammten  Kriegswesens  des 
Reichs  sind  von  alien  Bundesstaaten  und  ihren  Angehorigen  gleich- 
massig  zu  tragen,  so  dass  weder  Bevorzugungen,  noch  Pragravationen 
einzelner  Staaten  oder  Klassen  grundsatzlich  zulassig  sind.  Wo  die 
gleiche  Vertheilung  der  Lasten  sich  in  natura  nicht  herstellen  lasst, 


Verfassung  des  Deutschen  Reichs.  303 

ohne  die  offentliche  Wohlfahrt  zu  schadigen,  ist  die  Ausgleichung 
nach  den  Grundsatzen  der  Gerechtigkeit  im  Wege  der  Gesetzgebung 
festzustellen. 

Art.  59.  Jeder  wehrfahige  Deutsche  gehort  sieben  Jahre  lang,  in 
der  Regel  vom  vollendeten  20.  bis  zum  beginnenden  28.  Lebens- 
jahre,  dem  stehenden  Heere  —  und  zwar  die  ersten  drei  Jahre  bei 
den  Fahnen,  die  letzten  vier  Jahre  in  der  Reserve  —  die  folgenden 
fiinf  Lebensjahre  der  Landwehr  ersten  aufgebots  und  sodann  bis  zum 
31.  Marz  desjenigen  Kalenderjahres,  in  welchem  das  neununddrei- 
sigste  Lebensjahr  vollendet  wird,  der  Landwehr  zweiten  Aufgebots 
an.1 

Art.  60.  Die  Friedensprasenzstiirke  des  Deutschen  Heeres  wird 
bis  zum  31.  Dez.  18  71  auf  Ein  Prozent  der  Bevolkerung  von  1867 
normirt,  und  wird  pro  rata  derselben  von  den  einzelnen  Bundes- 
staaten  gestellt.  Fur  die  spiitere  Zeit  wird  die  Friedens-Prasenz- 
starke  des  Heeres  im  Wege  der  Reichsgesetzgebung  festgestellt. 

Art.  61.  Nach  Publikation  dieser  Verfassung.  ist  in  dem  ganzen 
Reiche  die  gesammte  Preussische  Militairgesetzgebung  ungesaumt 
einzufiihren,  sowohl  die  Gesetze  selbst,  als  die  zu  ihrer  Ausfiihrung, 
Erlauterung  oder  Erganzung  erlassenen  Reglements,  Instrucktionen 
und  Reskripte,  namentlich  also  das  Militair-Strafgesetzbuch  v.  3. 
April  1845,  die  Militair-Strafgerichts-Ordnung  v.  3.  April  1845,  die 
Vercrdnung  iiber  die  Ehrengerichte  v.  20.  Juli  1843,  die  Bestimmun- 
gen  iiber  Aushebung,  Dienstzeit,  Servis-  und  Verpflegungswesen,  Ein- 
quartierung,  Ersatz  von  Flurbeschadigungen,  Mobilmachung  u.  s.  w. 
fur  Krieg  und  Frieden.  Die  Militair-Kirchenordnung  ist  jedoch  aus- 
geschlossen. 

Nach  gleichmassiger  Durchfiihrung  der  Kriegsorganisation  des 
Deutschen  Heeres  wird  ein  umfassendes  Reichs-Militairgesetz  dem 
Reichstage  und  dem  Bundesrathe  zur  verfassungsmiissigen  Beschluss- 
fassung  vorgelegt  werden. 

Art.  62.  Zur  Bestreitung  des  Aufwandes  fur  das  gesammte  Deutsche 
Heer  und  die  zu  demselben  gehorigen  Einrichtungen  sind  bis  zum 
31.  Dec.  187 1  dem  Kaiser  jahrlich  sovielmal  225  Thaler,  in  Worten 
zweihundert  fiinf  und  zwanzig  Thaler,  als  die  Kopfzahl  der  Friedens- 
starke  des  Heeres  nach  Art.  60  betragt,  zur  Verfiigung  zu  stellen. 
Vergl.  Abschnitt  XII. 

Nach  dem  31.  Dec.  18  71  miissen  diese  Beitrage  von  den  einzelnen 
Staaten  des  Bundes  zur  Reichskasse  fortgezahlt  werden.    Zur  Berech- 

1  Reichsgesetzblatt.     1888.    S.  II. 


304  Appendix. 

nung  derselben  wird  die  im  Art.  60  interimistisch  festgestellte  Fried- 
ens-  Prasenzstarke  so  lange  festgehalten,  bis  sie  durch  ein  Reichs- 
gesetz  abgeandert  ist. 

Die  Verausgabung  dieser  Summe  fur  das  gesammte  Reichsheer 
und  dessen  Einrichtungen  wird  durch  das  Etatsgesetz  festgestellt. 

Bei  der  Feststellung  des  Militair-Ausgabe-Etats  wird  die  auf 
Grundlage  dieser  Verfassung  gesetzlich  feststehende  Organisation  des 
Reichsheeres  zu  Grunde  gelegt. 

Art.  63.  Die  gesammte  Landmacht  des  Reichs  wird  ein  einheit- 
liches  Heer  bilden,  welches  in  Krieg  und  Frieden  unter  dem  Befehle 
des  Kaisers  steht. 

Die  Regimenter  &c.  ftihren  fortlaufende  Nummern  durch  das 
ganze  Deutsche  Heer.  Fur  die  Bekleidung  sind  die  Grundfarben 
und  der  Schnitt  der  Koniglich  Preussischen  Armee  massgebend. 
Dem  betreffenden  Kontingentsherrn  bleibt  es  iiberlassen,  die  aus- 
seren  Abzeichen  (Kokarden  &c.)  zu  bestimmen. 

Der  Kaiser  hat  die  Pflicht  und  das  Recht,  dafiir  Sorge  zu  tragen, 
dass  innerhalb  des  Deutschen  Heeres  alle  Truppentheile  vollzahlig 
und  kriegstuchtig  vorhanden  sind  und  dass  Einheit  in  der  Organisa- 
tion und  Formation,  in  Bewaffnung  und  Kommando,  in  der  Ausbil- 
dung  der  Mannschaften,  sowie  in  der  Qualifikation  der  Offiziere 
hergestellt  und  erhalten  wird.  Zu  diesem  Behufe  ist  der  Kaiser  be- 
rechtigt,  sich  jederzeit  durch  Inspectionen  von  der  Verfassung  der 
einzelnen  Kontingente  zu  iiberzugen  und  die  Abstellung  der  dabei 
vorgefundenen  Mangel  anzuordnen. 

Der  Kaiser  bestimmt  den  Prasenszstand,  die  Gliederung  und  Ein- 
theilung  der  Kontingente  des  Reichsheeres,  sowie  die  Organisation 
der  Landwehr,  und  hat  das  Recht,  innerhalb  des  Bundesgebietes  die 
Garnisonen  zu  bestimmen,  sowie  die  kriegsbereite  Aufstellung  eines 
jeden  Theils  des  Reichsheeres  anzuordnen. 

Behufs  Erhaltung  der  unentbehrlichen  Einheit  in  der  Administra- 
tion, Verpflegung,  Bewaffnung  und  Ausriistung  aller  Truppentheile 
des  Deutschen  Heeres  sind  die  beziiglichen  kunftig  ergehenden 
Anordnungen  fur  die  Preussische  Armee  den  Kommandeuren  der 
ubrigen  Kontingente,  durch  den  Art.  8  Nr.  1  bezeichneten  Ausschuss 
fur  das  Landheer  und  die  Festungen,  zur  Nachachtung  in  geeigneter 
Weise  mitzutheilen. 

Art.  64.  Alle  Deutsche  Truppen  sind  verpflichtet,  den  Befehlen 
des  Kaisers  unbedingte  Folge  zu  leisten. 

Diese  Verpflichtung  ist  in  den  Fahneneid  aufzunehmen. 


Verfassung  des  Deutschen  Reichs.  305 

Der  Hochstkommandirende  eines  Kontingents,  sowie  alle  Ofifiziere, 
welche  Truppen  mehr  als  eines  Kontingents  befehligen,  und  alle 
Festungskommandanten  werden  von  dem  Kaiser  ernannt.  Die  von 
Demselben  ernannten  Offiziere  leisten  Ihm  den  Fahneneld.  Bei 
Generalen  und  den  Generalstellungen  versehenden  Offizieren  inner- 
halb  des  Kontingents  ist  die  Ernennung  von  der  jedesmaligen  Zustim- 
mung  des  Kaisers  abhangig  zu  machen. 

Der  Kaiser  ist  berechtigt,  Behufs  Versetzung  mit  oder  ohne  Be- 
forderung  fiir  die  von  Ihm  im  Reichsdienste,  sei  es  im  Preussischen 
Heere,  oder  in  anderen  Kontingenten  zu  besetzenden  Stellen  aus 
den  Offizieren  aller  Kontingente  des  Reichsheeres  zu  wahlen. 

Art.  65.  Das  Recht,  Festungen  innerhalb  des  Bundesgebietes 
anzulegen,  steht  dem  Kaiser  zu,  welcher  die  Bewilligung  der  dazu 
erforderlichen  Mittel,  soweit  das  Ordinarium  sie  nicht  gewahrt,  nach 
Abschnitt  XII.  beantragt. 

Art.  66.  Wo  nicht  besondere  Konventionen  ein  Anderes  bestimmen, 
ernennen  die  Bundesfursten,  beziehentlich  die  Senate  die  Offiziere 
ihrer  Kontingente,  mit  der  Einschrankung  des  Art.  64.  Sie  sind 
Chefs  aller  ihren  Gebieten  angehorenden  Truppentheile  und  geniessen 
die  damit  verbundenen  Ehren.  Sie  haben  namentlich  das  Recht  der 
Inspizirung  zu  jeder  Zeit  und  erhalten,  ausser  den  regelmiissigen 
Rapporten  und  Meldungen  iiber  vorkommende  Veranderungen,  Be- 
hufs der  nothigen  landesherrlichen  Publikation,  rechtzeitige  Mit- 
theilung  von  den  die  betreffenden  Truppentheile  beruhrenden 
Avancements  und  Ernennungen. 

Auch  steht  ihnen  das  Recht  zu,  zu  polizeilichen  Zwecken  nicht 
bios  ihre  eigenen  Truppen  zu  vervvenden,  sondern  auch  alle  anderen 
Truppentheile  des  Reichsheeres,  welche  in  ihren  Landergebieten 
dislocirt  sind,  zu  requiriren. 

Art.  67.  Erspamisse  an  dem  Militair-Etat  fallen  unter  keinen  Um- 
standen  einer  einzelnen  Regierung,  sondern  jederzeit  der  Reichs- 
kasse  zu. 

Art.  68.  Der  Kaiser  kann,  wenn  die  offentliche  Sicherheit  in  dem 
Bundesgebiete  bedroht  ist,  einen  jeden  Theil  desselben  in  Kriegs- 
zustand  erklaren.  Bis  zum  Erlass  eines  die  Voraussetzungen,  die 
Form  der  Verkundigung  und  die  Wirkungen  einer  solchen  Erklarung 
regelnden  Reichsgesetzes  gelten  dafiir  die  Vorschriften  des  Preuss. 
Gesetzes  v.  4.  Juni  185 1  (G.-S.  fur  185 1  S.  451  ff.). 


306  Appendix. 


SCHLUSSBESTIMMUNG  ZUM  XI.   ABSCHNITT. 

Die  in  diesem  Abschnitt  enthaltenen  Vorschriften  kommen  in 
Bayern  nach  naherer  Bestimmung  des  Biindnissvertrages  v.  23.  Nov. 
1870  (B.  G.  B.  1871  S.  9)  unter  III.  §  5,  in  Wurttemberg  nach 
naherer  Bestimmung  der  Militairkonvention  v.  21./25.  Nov.  1870 
(B.  G.  B.  1870  S.  658)  zur  Anwendung. 

1.   Biindniss-Vertrag  mit  Bayern  v.  23.  Nov.  1870  (BGB.  1871  S.  9  ff.)  unter 

HI.  §  5- 

Anlangend  die  Art.  57  bis  68  von  dem  Bundes-Kriegswesen,  so  findet  Art.  57 
Anwendung  auf  das  Konigreich  Bayern.  Art.  58  ist  gleichfalls  fur  das  Konig- 
reich  Bayern  giiltig.    Dieser  Art.  erhalt  jedoch  fur  Bayern  folgenden  Zusatz : 

Der  in  diesem  Art.  bezeichneten  Verpfiichtung  wird  von  Bayern  in  der  Art  ent- 
sprochen,  dass  es  die  Kosten  und  Lasten  seines  Kriegswesens  und  den  Unterhalt 
der  auf  seinem  Gebiete  belegenen  festen  Platze  und  sonstigen  Fortifikationen 
einbegriffen,  ausschliesslich  und  allein  tragt. 

Art.  59  hat  gleichwie  der  Art.  60  fur  Bayern  gesetzliche  Geltung. 

Die  Art.  61  bis  68  finden  auf  Bayern  keine  Anwendung.  An  deren  Stelle 
treten  folgende  Bestimmungen : 

I.  Bayern  behalt  zunachst  seine  Militairgesetzgebung  nebst  den  dazu  gehorigen 
Vollzugs-Instruktionen,  Verordnungen,  Erlauterungen  u.  s.  w.  bis  zur  verfassungs- 
massigen  Beschlussfassung  iiber  die  der  Bundesgesetzgebung  anheimfallenden 
Materien,  desgl.  bis  zur  freien  Verstandigung  bezuglich  der  Einfiihrung  der  bereits 
vor  dem  Eintritte  Bayerns  in  den  Bund  in  dieser  Hinsicht  erlassenen  Gesetze  und 
sonstigen  Bestimmungen. 

II.  Bayern  verpflichtet  sich,  fur  sein  Kontingent  und  die  zu  demselben  gehorigen 
Einrichtungen  einen  gleichen  Geldbetrag  zu  verwenden,  wie  nach  Verhaltniss  der 
Kopfstarke  durch  den  Militair-Etat  des  Deutschen  Bundes  fur  die  iibrigen  Theile 
des  Bundesheeres  ausgesetzt  wird.  Dieser  Geldbetrag  wird  im  Bundes-Budget 
fur  das  Koniglich  Bayerische  Kontingent  in  einer  Summe  ausgeworfen.  Seine 
Verausgabung  wird  durch  Special-Etat  geregelt,  deren  Aufstellung  Bayern  iiber- 
lassen  bleibt.  Hierfiir  werden  im  Allgemeinen  diejenigen  Etatsansatze  nach 
Verhaltniss  zur  Richtschnur  dienen,  welche  fur  das  iibrige  Bundesheer  in  den 
einzelnen  Titeln  ausgeworfen  sind. 

III.  Das  Bayerische  Heer  bildet  einen  in  sich  geschlossenen  Bestandtheil  des 
Deutschen  Bundesheeres  mit  selbststandiger  Verwaltung,  unter  der  Militairhoheit 
S.  Maj.  des  Konigs  von  Bayern,  im  Kriege  —  und  zwar  mit  Beginn  der  Mobili- 
sirung  —  unter  dem  Befehle  des  Bundes- Feldherrn.  In  Bezug  auf  Organisation, 
Formation,  Ausbildung  und  Gebiihren,  dann  hinsichtlich  der  Mobilmachung  wird 
Bayern  voile  Uebereinstimmung  mit  den  fur  das  Bundesheer  bestehenden  Normen 
herstellen.  Bezuglich  der  Bewaffnung  und  Ausriistung,  sowie  der  Gradabzeichen 
behalt  sich  die  Koniglich  Bayerische  Regierung  die  Herstellung  der  vollen  Uebe- 
reinstimung  mit  dem  Bundesheere  vor.  Der  Bundes-Feldherr  hat  die  Pflicht  und 
das  Recht,  sich  durch  Inspektionen  von  der  Uebereinstimmung  in  Organisation, 


Verfassung  des  Deutschen  Reichs.  307 

Formation  und  Ausbildung,  sowie  von  der  Vollzahligkeit  und  Kriegstiichtigkeit 
des  Bayerischen  Kontingents  Ueberzeugung  zu  verschaffen  und  wird  sich  iiber  die 
Modalitaten  der  jeweiligen  Vornahme  und  iiber  das  Ergebniss  dieser  Inspek- 
tionem  mit  Sr.  Maj.  dem  Konige  von  Bayern  ins  Vernehmen  zu  setzen.  Die 
Anordnung  der  Kriegsbereitschaft  (Mobilisirung)  des  Bayerischen  Kontingents 
oder  eines  Theils  desselben  erfolgt  auf  Veranlassung  des  Bundes-Feldherrn 
durch  Se.  Maj.  den  Konig  von  Bayern.  Zur  steten  gegenseitigen  Information  in 
den  durch  diese  Vereinbarung  geschaffenen  militairischen  Beziehungen  erhalten 
die  Militair-Bevollmachtigten  in  Berlin  und  Miinehen  iiber  die  einschlagigen 
Anordnungen  entsprechende  Mittheilung  durch  die  resp.  Kriegs-Ministerien. 

IV.  Im  Kriege  sind  die  Bayerischen  Truppen  verpflichtet,  den  Befehlen  des 
Bundes-Feldherrn  unbedingt  Folge  zu  leisten.  Diese  Verpflichtung  wird  in  den 
Fahneneid  aufgenommen. 

V.  Die  Anlage  von  neuen  Befestigungen  auf  Bayerischem  Gebiete  im  Interesse 
der  gesammtdeutschen  Vertheidigung  wird  Bayern  im  Wege  jeweiliger  specieller 
Vereinbarung  zugestehen.  An  den  Kosten  fiir  den  Bau  und  die  Ausriistung 
solcher  Befestigungsanlagen  auf  seinem  Gebiete  betheiligt  sich  Bayern  in  dem 
seiner  Bevolkerungszahl  entsprechenden  Verhaltnisse  gleichmassig  mit  den  ande- 
ren  Staaten  des  Deutschen  Bundes;  ebenso  an  den  fiir  sonstige  Festungsanlagen 
etwa  Seitens  des  Bundes  zu  bewilligenden  Extraordinarien. 

VI.  Die  Voraussetzungen,  unter  welchen  wegen  Bedrohung  der  offentlichen 
Sicherheit  das  Bundesgebiet  oder  einTheil  desselben  durch  den  Bundes-Feldherrn 
in  Kriegszustand  erklart  werden  kann,  die  Form  der  Verkiindigung  und  die  Wir- 
kungen  einer  solchen  Erklarung  werden  durch  ein  Bundesgesetz  geregelt. 

VII.  Vorstehende  Bestimmungen  treten  mit  dem  I.  Jan.  1872  in  Wirksamkeit. 
2.   Die  Bestimmungen  der  Militair-Konvention  mit  Wiirttemberg  v.  21.  und 

25.  Nov.  1870  (BGB.  1870  S.  658  ff.)  sind  folgende: 

Art.  1.  Die  Konigl.  Wiirttembergischen  Truppen  als  Theil  des  Deutschen  Bun- 
desheeres  bilden  ein  in  sich  geschlossenes  Armee-Korps  nach  der  vereinbarten 
Formation  nebst  der  entsprechenden  Anzahl  von  Ersatz-  und  Befatzungs-Truppen- 
nach  Preussischen  Normen  im  Falle  der  Mobilmachung  oder  Kriegsbereitschaft. 

Art.  2.  Die  hierdurch  bedingte  neue  Organisation  der  Konigl.  Wiirttembergis- 
chen Truppen  soil  in  drei  Jahren  nach  erfolgter  Anordnung  zur  Riickkehr  von 
dem  gegenwartigen  Kriegsstand  auf  den  Friedensfuss  vollendet  sein. 

Art.  3.  Von  dieser  Riickkehr  an  bilden,  beginnend  mit  einem  noch  naher  zu 
bestimmenden  Tage,  die  Konigl.  Wiirttembergischen  Truppen  das  vierzehnte 
Deutsche  Bundes-Armee-Korps  mit  ihren  eigenen  Fahnen  und  Feldzeichen  und 
erhalten  die  Divisionen,  Brigaden,  Regimenter  und  selbststandigen  Bataillone  des 
Armee-Korps  die  entsprechende  laufende  Nummer  in  dem  Deutschen  Bundes- 
heere  neben  der  Numerirung  im  Koniglich  Wiirttembergischen  Verbande. 

Art.  4.  Die  Unterstellung  der  Konigl.  Wiirttembergischen  Truppen  unter  den 
Oberbefehl  Sr.  Maj.  des  Kdnigs  von  Preussen  als  Bundes-Feldherrn  beginnt  eben- 
falls  an  einem  noch  naher  zu  bestimmenden  Tage  und  wird  in  den  bisherigen  Fah- 
neneid in  der  Weise  aufgenommen,  dass  es  an  der  betr.  Stelle  heisst :  "  dass  ich 
Sr.  Maj.  dem  Konige  wahrend  meiner  Dienstzeit  als  Soldat  treu  dienen,  dem 
Bundes-Feldherrn  und  den  Kriegsgesetzen  Gehorsam  leisten,  und  mich  stets  als 
tapferer  und  ehrliebender  Sodat  verhalten  will.     So  wahr  mir  Gott  helfe." 


308  Appendix. 

Art.  5.  Die  Ernennung,  Beforderung,  Versetzung  u.  s.  w.  der  Officiere  und 
Beamten  des  Konigl.  Wiirttembergischen  Armee-Korps  erfolgt  durch  Se.  Maj. 
den  Konig  von  Wurttemberg,  diejenige  des  Hochstcommandirenden  fur  das 
Armee-Korps  nach  vorgangiger  Zustimmung  Sr.  Maj.  des  Ktinigs  von  Preussen 
als  Bundes-Feldherr.  Se.  Maj.  der  Konig  von  Wurttemberg  geniesst  als  Chef 
seiner  Truppen  die  Ihm  Allerhochst  zustehenden  Ehren  und  Rechte  und  iibt  die 
entsprechenden  gerichtsherrlichen  Befugnisse  sammt  dem  Bestatigungs-  und 
Begnadigungsrecht  bei  Erkenntnissen  gegen  Angehorige  des  Armee-Korps  aus, 
welche  iiber  die  Befugnisse  des  Armee-Korps-Kommandanten,  beziehungsweise 
des  Konigl.  Wiirttembergischen  Kriegsministeriums  hinausgehen. 

Art.  6.  Unbeschadet  der  dem  Bundes-Feldherrn  gemass  der  Bundes-Verfassung 
zustehenden  Rechte  der  Disponirung  iiber  alle  Bundestruppen  und  ihrer  Dislocir- 
ung  soil  fiir  die  Dauer  friedlicher  Verhaltnisse  das  Wiirttembergische  Armee- 
Korps  in  seinem  Verband  und  in  seiner  Gliederung  erhalten  bleiben  und  im 
eigenen  Lande  dislocirt  sein;  eine  hiervon  abweichende  Anordnung  des  Bundes- 
Feldherrn,  sowie  die  Dislocirung  anderer  Deutscher  Truppentheile  in  das  Konig- 
reich  Wurttemberg  soil  in  friedlichen  Zeiten  nur  mit  Zustimmung  Sr.  Maj.  des 
Konigs  von  Wurttemberg  erfolgen,  sofern  es  sich  nicht  um  Besetzung  Siid- 
deutscher  oder  Westdeutscher  Festungen  handelt. 

Art.  7.  Ueber  die  Ernennung  der  Kommandanten  fiir  die  im  Konigreiche  Wiirt- 
temberg  gelegenem  festen  Platze,  welche  nach  Art.  64  der  Bundes  Verf.  dem 
Bundes-Feldherrn  zusteht,  sowie  iiber  die  Demselben  gleichermassen  zustehende 
Berechtigung,  neue  Befestigungen  innerhalb  des  Konigreichs  anzulegen,  wird 
sich  der  Bundes-Feldherr  eintretenden  Falls  mit  dem  Kdnige  von  Wurttemberg 
vorher  in  Vernehmen  setzen;  ebenso  wenn  der  Bundes-Feldherr  einen  von  Ihm 
zu  ernennenden  Officier  aus  dem  Konigl.  Wiirttembergischen  Armee-Korps 
wahlen  will.  Um  der  Beurtheilung  dieser  Ernennungen  eine  Grundlage  zu 
gewahren,  werden  iiber  die  Officiere  des  Konigl.  Wiirttembergishen  Armee- 
Korps  vom  Stabsofficier  aufwarts  alljahrlich  Personal-  und  Qualificationsberichte 
nach  Preussischem  Schema  aufgestellt  und  Sr.  Maj.  dem  Bundes-Feldherrn  vor- 
gelegt. 

Art.  8.  Zur  Beforderung  der  Gleichmassigkeit  in  der  Ausbildung  und  dem 
inneren  Dienst  der  Truppen  werden  nach  gegenseitiger  Verabredung  einige 
Konigl.  Wiirttembergische  Officiere  je  auf  1-2  Jahre  in  die  Konigl.  Preussische 
Armee,  und  Konigl.  Preussische  Officiere  in  das  Konigl.  Wiirttembergische 
Armee-Korps  kommandirt.  Hinsichtlich  etwa  wiinschenswerther  Versetzung  ein- 
zelner  Officiere  aus  Konigl.  Wiirttembergischen  Diensten  in  die  Konigl.  Preuss- 
ische Armee  oder  umgekehrt  haben  in  jedem  Specialfalle  besondere  Verabre- 
dungen  stattzufinden. 

Art.  9.  Der  Bundes-Feldherr,  welchem  nach  Art.  63  das  Recht  zusteht,  sich 
jederzeit  durch  Inspektionen  von  der  Verfassung  der  einzelnen  Kontingente  zu 
iiberzeugen,  wird  die  Konigl.  Worttembergischen  Truppen  alljahrlich  mindestens 
einmal  entweder  selbst  inspiciren,  oder  durch  zu  ernennende  Inspekteure,  deren 
Personen  vorher  Sr.  Maj.  dem  Konige  von  Wurttemberg  bezeichnet  werden  sollen, 
in  den  Garnisonen  oder  bei  den  Uebungen  inspiciren  lassen.  Die  in  Folge  solcher 
Inspicirungen  bemerkten  sachlichen  und  personlichen  Missstande  wird  der  Bun- 
des-Feldherr dem  Konige  von  Wurttenberg  mittheilen,  welcher  seinerseits  diesel- 


Verfassu?ig  des  Deutschen  Reichs.  309 

ben  abstellen  und  von  dem  Geschehenen  alsdann  dem  Bundes-Feldherrn  Anzeige 
machen  lasst. 

Art.  10.  Fiir  die  Organisation  des  Konigl.  Wiirttembergischen  Armee-Korps 
sind  —  so  lange  und  insoweit  nicht  auf  dem  Wege  der  Bundes-Gesetzgebung 
anders  bestimmt  wird  —  die  derzeitigen  Preussischen  Normen  massgebend.  Es 
kommen  demgemass  in  dem  Konigreiche  Wiirttemberg,  ausser  dem  G.  iiber  die 
Verpflichtung  zum  Kriegsdienste  v.  9.  Nov.  1867  nebst  der  dazu  gehorigen  Militair- 
Ersatz-  Instr.  v  26.  Marz  1868,  insbesondere  alle  Preuss.  Exercier-  und  sonstigen 
Reglements,  Instruktionen  und  Reskripte  zur  Ausfuhrung,  namentlich  die  V. 
iiber  die  Ehrengerichte  v.  20  Juli  1843,  die  fiir  Krieg  und  Frieden  gegebenen 
Bestimmungen  iiber  Aushebung,  Dienstzeit,  Servis-,  Verpflegungs-  und  Invaliden- 
wesen,  Mobilmachung  u.  s.  w.,  iiber  den  Ersatz  des  Officier-Korps  und  iiber  das 
Militair-Erziehungs-Bildungswesen.  Ausgenommen  sind  von  der  Gemeinsamkeit 
in  den  Einrichtungen  des  Konigl.  Wiirttembergischen  Armee-Korps  mit  denjeni- 
gen  der  Preuss.  Armee  :  die  Militair-Kirchenordnug,  das  Militairstrafgesetzbuch 
und  die  Militair-Strafgerichtsordnung,  sowie  die  Bestimmungen  iiber  Einquar- 
tierung  und  Ersatz  von  Flurbeschadigungen,  woriiber  in  dem  Konigreiche  Wiirt- 
temberg die  derzeit  bestehenden  Gesetze  und  Einrichtungen  vorerst  und  bis  zur 
Regelung  im  Wege  der  Bundes-Gesetzgebung  in  Geltung  verbleiben.  Die  Grad- 
abzeichen,  sowie  die  Benennungen  und  der  Modus  der  Verwaltung  sind  in  dem 
Konigl.  Wiirttembergischen  Armee-Korps  dieselben  wie  in  der  Konigl.  Preuss. 
Armee.  Die  Bestimmungen  iiber  die  Bekleidung  fiir  das  Konigl.  Wiirttem- 
bergische  Armee-Korps  werden  von  Sr.  Maj.  dem  Konige  von  Wiirttemberg  gege- 
ben  und  es  soil  dabei  den  Verhaltnissen  der  Bundes-Armee  die  moglichste 
Rechnung  getragen  werden. 

Art.  11.  Im  Falle  eines  Krieges  steht  von  dessen  Ausbruch  bis  zu  dessen 
Beendigung  die  obere  Leitung  des  Telegraphenwesens,  soweit  solches  fiir  die 
Kriegswecke  eingerichtet  ist,  dem  Bundes-Feldherrn  zu.  Die  Konigl.  WUrttem- 
bergische  Regierung  wird  bereits  wahrend  des  Friedens  die  beziiglichen  Einrich- 
tungen in  Uebereinstimmung  mit  denjenigen  des  Nordd.  Bundes  treffen,  und 
insbesondere  bei  dem  Ausbau  des  Telegraphennetzes  darauf  Bedacht  nehmen, 
auch  eine  der  Kriegsstarke  ihres  Armee-Korps  entsprechende  Feldtelegraphie  zu 
organisiren. 

Art.  12.  Aus  der  von  Wiirttemberg  nach  Art.  62  der  Bundes-Verf.  zur  Verf- 
iigung  zu  stellenden  Summe  bestreitet  die  Konigl.  Wiirttembergische  Regierung, 
nach  Massgabe  des  Bundes-Haushalts-Etats,  den  Aufwand  fiir  die  Unterhaltung 
des  Konigl.  Wiirttembergischen  Armee-Korps,  einschliesslich  Neuanschaffungen, 
Bauten,  Einrichtungen  u.  s.  w.  in  selbststandiger  Verwaltung,  sowie  den  Antheil 
WUrttembergs  an  den  Kosten  fiir  die  gemeinschaftlichen  Einrichtungen  des 
Gesammtheeres  —  Central-Administration,  Festungen,  Unterhaltung  der  Militair- 
Bildungs-Anstalten,  einschliesslich  der  Kriegsschulen  und  militairarztlichen  Bil- 
dungs-Anstalten,  der  Examinations-Kommissionen,  der  militairwissenschaftlichen 
und  technischen  Institute,  des  Lehrbataillons,  der  Militair-  und  Artillerie-Schiess- 
schule,  der  Militair-Reitschule,  der  Central-Turnanstalt  und  des  grossen  Gene- 
ralstabs.  Ersparnisse,  welche  unter  voller  Erfiillung  der  Bundespflichten  als 
Ergebnisse  der  obwaltenden  besonderen  Verhaltnisse  moglich  werden,  verbleiben 
zu  Verfiigung  WUrttembergs.     Das  Konigl.  Wiirttembergische  Armee-Korps  par- 


3 1  o  Appen  dix. 

ticipirt  an  den  gemeinschaftlichen  Einrichtungen  und  wird  im  grossen  General 
stabe  verhaltnissmassig  vertreten  sein. 

Art.  13.  Die  Zahlung  der  von  Wurttemberg  nach  Art.  62  der  Bundes-Verf. 
aufzubringenden  Summe  beginnt  mit  dem  ersten  Tage  des  Monats,  vvelcher  auf 
die  Anordnung  zur  RUckkehr  der  Konigl.  Wiirttembergischen  Truppen  von  dem 
Kriegszustande  auf  den  Friedensfuss  folgt.  In  den  Etat  und  die  Abrechnung  des 
Bundes-Heeres  tritt  das  Konigl.  Wurttembergische  Armee-Korps  jedoch  erst  mit 
dem  1.  Jan.  1872  ein.  Wahrend  der  im  Art.  2  verabredeten  dreijahrigen  Ueber- 
gangszeit  wird  fur  den  Etat  des  Konigl.  Wiirttemburgischen  Armee-Korps  die 
Rucksicht  auf  die,  in  dieser  Periode  zu  vollziehende  neue  Organisation  massgebend 
sein,  und  zwar  sowohl  in  Beziehung  auf  die  in  Ansatz  zu  bringenden  Betrage, 
als  auch  in  Beziehung  auf  die  Zulassigkeit  der  gegenseitigen  Uebertragung  ein- 
zelner  Titel  und  der  Uebertragung  gleichnamiger  Titel  aus  einem  Jahre  ins  andere. 

Art.  14.  Verstarkungen  der  Konigl.  Wiirttembergischen  Truppen  durch  Einzie- 
hung  der  Beurlaubten,  sowie  die  Kriegsformationen  derselben  und  endlich  deren 
Mobilmachung  hangen  von  den  Anordnungen  des  Bundes-Feldherrn  ab.  Solchen 
Anordnungen  ist  allezeit  und  im  ganzen  Umfange  Folge  zu  leisten.  Die  hier- 
durch  envachsenden  Kosten  tragt  die  Bundeskasse,  jedoch  sind  die  Wiirttemberg- 
ischen Kassen  verpflichtet,  insoweit  ihre  vorhandenen  Fonds  ausreichen,  die 
nothwendigen  Gelder  vorzuschiessen. 

Art.  15.  Zur  Vermittelung  der  dienstlichen  Beziehungen  des  Konigl.  Wiirttem- 
bergischen Armee-Korps  zu  dem  Deutschen  Bundesheer  findet  ein  direkter 
Schriftvvechsel  zwischen  dem  Konigl.  Preuss.  und  dem  Konigl.  Wiirttembergischen 
Kriegsministerium  statt  und  erhalt  letzteres  auf  diese  Weise  alle  betreffenden  zur 
Zeit  giiltigen  oder  spater  zu  erlassenden  Reglements,  Bestimmungen  u.  s.  w.  zur 
entsprechenden  Ausfiihrung.  Nebendem  wird  die  Konigl.  Wurttembergische 
Regierung  jederzeit  in  dem  Bundesausschuss  fur  das  Landheer  und  die  Festungen 
vertreten  sein. 


XII.    Reichsfinanzen. 

Art.  69.  Alle  Einnahmen  und  Ausgaben  des  Reichs  mussen  fur 
jedes  Jahr  veranschlagt  und  auf  den  Reichshaushalts-Etat  gebracht 
vverden.  Letzterer  wird  vor  Beginn  des  Etatsjahres  nach  folgenden 
Grundsatzen  durch  ein  Gesetz  festgestellt. 

Art.  70.  Zur  Bestreitung  aller  gemeinschaftlichen  Ausgaben  dienen 
zunachst  die  etvvaigen  Ueberschlisse  der  Vorjahre,  sowie  die  aus  den 
Zollen,  den  gemeinschaftlichen  Verbrauchssteuern  und  aus  dem  Post- 
und  Telegraphenwesen  fliessenden  gemeinschaftlichen  Einnahmen. 
Insoweit  dieselben  durch  diese  Einnahmen  nicht  gedeckt  werden, 
sind  sie,  so  lange  Reichssteuern  nicht  eingeftihrt  sind,  durch  Beitrage 
der  einzelnen  Bundesstaaten  nach  Massgabe  ihrer  Bevolkerung  auf- 
zubringen,  welche  bis  zur  Hohe  des  budgetmassigen  Betrages  durch 
den  Reichskanzler  ausgeschrieben  werden. 


Verfassung  des  Deutschen  Reichs.  311 

Art.  71.  Die  gemeinschaftlichen  Ausgaben  werden  in  der  Regel 
fur  ein  Jahr  bewilligt,  konnen  jedoch  in  besonderen  Fallen  auch  fur 
eine  langere  Dauer  bewilligt  werden. 

Wahrend  der  im  Art.  60  normirten  Uebergangszeit  ist  der  nach 
Titel  geordnete  Etat  iiber  die  Ausgaben  fur  das  Heer  dem  Bundes- 
rathe  und  dem  Reichstage  nur  zur  Kenntnissnahme  und  zur  Erin- 
nerung  vorzulegen. 

Art.  72.  Ueber  die  Verwendung  aller  Einnahmen  des  Reichs  ist 
durch  den  Reichskanzler  dem  Bundesrathe  und  dem  Reichstage  zur 
Entlastung  jahrlich  Rechnung  zu  legen. 

Art.  73.  In  Fallen  eines  ausserordentlichen  Bedtirfnisses  kann  im 
Wege  der  Reichsgesetzgebung  die  Aufnahme  einer  Anleihe,  sowie 
die  Uebernahme  einer  Garantie  zu  Lasten  des  Reichs  erfolgen. 

SCHLUSSBESTIMMUNG   ZUM    XII.    ABSCHNITT. 

Auf  die  Ausgaben  fur  das  Bayerische  Heer  finden  die  Art.  69  und 
71  nur  nach  Massgabe  der  in  der  Schlussbestimmung  zum  XI.  Ab- 
schnitt  erwahnten  Bestimmungen  des  Vertr.  v.  23.  Nov.  1870  und  der 
Art.  72  nur  insoweit  Anwendung,  als  dem  Bundesrathe  und  dem 
Reichstage  die  Ueberweisung  der  fur  das  Bayerische  Heer  erforder- 
lichen  Summe  an  Bayern  nachzuweisen  ist. 

XIII.    SCHLICHTUNG   VON   STREITIGKEITEN  UND    STRAFBESTIMMUNGEN. 

Art.  74.  Jedes  Unternehmen  gegen  die  Existenz,  die  Integritat, 
die  Sicherheit  oder  die  Verfassung  des  Deutschen  Reichs,  endlich  die 
Beleidigung  des  Bundesrathes,  des  Reichstages,  eines  Mitgliedes  des 
Bundesrathes  oder  des  Reichstages,  einer  Behorde  oder  eines  offent- 
lichen  Beamten  des  Reichs,  wahrend  dieselben  in  der  Ausiibung  ihres 
Berufes  begriffen  sind  oder  in  Beziehung  auf  ihren  Beruf,  durch 
Wort,  Schrift,  Druck,  Zeichen,  bildliche  oder  andere  Darstellung, 
werden  in  den  einzelnen  Bundesstaaten  beurtheilt  und  bestrasft  nach 
Massgabe  der  in  den  letzteren  bestehenden  oder  kiinftig  in  Wirksam- 
keit  tretenden  Gesetze,  nach  welchen  eine  gleiche  gegen  den  einzel- 
nen Bundesstaat,  seine  Verfassung,  seine  Kammern  oder  Stande, 
seine  Kammer-  oder  Standemitglieder,  seine  Behorden  und  Beamten 
begangene  Handlung  zu  richten  ware. 

Art.  75.  Fiir  diejenigen  in  Art.  74  bezeichneten  Unternehmungen 
gegen  das  Deutsche  Reich,  welche,  wenn  gegen  einen  der  einzelnen 
Bundesstaaten   gerichtet,   als    Hochverrath   oder   Landesverrath  zu 


312  Appendix. 

qualificiren  waren,  ist  das  gemeinschaftliche  Ober-Appellations- 
gericht  der  drei  freien  und  Hansestadte  in  Liibeck  die  zustandige 
Spruchbehorde  in  erster  und  letzter  Instanz. 

Die  naheren  Bestimmungen  iiber  die  Zustandigkeit  und  das  Ver- 
fahren  des  Ober-Appellationsgerichts  erfolgen  im  Wege  der  Reichs- 
gesetzgebung.  Bis  zum  Erlasse  eines  Reichsgesetzes  bewendet  es 
bei  der  seitherigen  Zustandigkeit  der  Gerichte  in  den  einselnen  Bun- 
desstaaten  und  den  auf  das  Verfahren  dieser  Gerichte  sich  beziehen- 
den  Bestimmungen. 

Art.  76.  Streitigkeiten  zwischen  verschiedenen  Bundesstaaten,  so- 
fern  dieselben  nicht  privatrechtlicher  Natur  und  daher  von  den  kom- 
petenten  Gerichtsbehorden  zu  entscheiden  sind,  werden  auf  Anrufen 
des  einen  Theils  von  dem  Bundesrathe  erledigt. 

Verfassungsstreitigkeiten  in  solchen  Bundesttaaten,  in  deren  Ver- 
fassung  nicht  eine  Behorde  zur  Entscheidung  solcher  Streitigkeiten 
bestimmt  ist,  hat  auf  Anrufen  eines  Theiles  der  Bundesrath  giitlich 
auszugleichen  oder,  wenn  das  nicht  gelingt,  im  Wege  der  Reichsge- 
setzgebung  zur  Erledigung  zu  bringen. 

Art.  77.  Wenn  in  einem  Bundesstaate  der  Fall  einer  Justizver- 
weigerung  eintritt,  und  auf  gesetzlichen  Wegen  ausreichende  Hiilfe 
nicht  erlangt  werden  kann,  so  liegt  dem  Bundesrathe  ob,  erwiesene 
nach  der  Verfassung  und  den  bestehenden  Gesetzen  des  betreffen- 
den  Bundesstaates  zu  beurtheilende  Beschwerden  iiber  verweigerte 
oder  gehemmte  Rechstpflege  anzunehmen,  und  darauf  die  gericht- 
liche  Hiilfe  bei  der  Bundesregierung,  die  zur  Beschvverde  Anlass 
gegeben  hat,  zu  bewirken. 

XIV.   Allgemeine  Bestimmungen. 

Art.  78.  Veriinderungen  der  Verfassung  erfolgen  im  Wege  der 
Gesetzgebung.  Sie  gelten  als  abgelehnt,  wenn  sie  im  Bundesrathe 
14  Stimmen  gegen  sich  haben. 

Diejenigen  Vorschriften  der  Reichsverfassung,  durch  welche  be- 

stimmte  Rechte  einzelner    Bundesstaaten   in   deren  Verhaltniss  zur 

Gesammtheit  festgestellt  sind,  konnen  nur  mit  Zustimmung  des 
berechtigten  Bundesstaates  abgeandert  werden. 


APPENDIX    III. 

VERFASSUNGS-URKUNDE   FUR   DEN 
PREUSSISCHEN    STAAT. 


APPENDIX    III. 

VERFASSUNGS-URKUNDE 

FUR   DEN 

PREUSSISCHEN   STAAT 
Vom  31.  Januar  1850. 


Wir  Friedrich  Wilhelm,  von  Gottes  Gnaden,  Konig  von  Preussen 
&c.  &c.  thun  kund  und  ftigen  zu  wissen,  dass  Wir,  nachdem  die  von 
Uns  unterm  5.  Dezember  1848  vorbehaltlich  der  Revision  im  ordent- 
licnen  Wege  der  Gesezgebung  verkiindigte  und  von  beiden  Kam- 
mern  Unseres  Konigreichs  anerkannte  Verfassung  des  Preussischen 
Staats  der  darin  angeordneten  Revision  unterworfen  ist,  die  Verfas- 
sung in  Uebereinstimmung  mit  beiden  Kammern  endgtiltig  festges- 
tellt  haben. 

Wir  verkiinden  demnach  dieselbe  als  Staats-Grundgesetz,  wie  folgt : 

Titel  I.  —  Vom  Staatsgebiete. 

Art.  1.  Alle  Landestheile  der  Monarchie  in  ihrem  gegenwartigen 
Umfange  bilden  das  Preussische  Staatsgebiet. 

Art.  2.  Die  Granzen  dieses  Staatsgebiets  konnen  nur  durch  ein 
Gesetz  verandert  werden. 

Titel  II.  —  Von  den  Rechten  der  Preussen. 

Art.  3.  Die  Verfassung  und  das  Gesetz  bestimmen,  unter  welchen 
Bedingungen  die  Eigenschaft  eines  Preussen  und  die  staatsbiirger- 
lichen  Rechte  erworben,  ausgeubt  und  verloren  werden. 

Art.  4.  Alle  Preussen  sind  vor  dem  Gesetze  gleich.  Standes- 
vorrechte  finden  nicht  statt.  Die  offentlichen  Aemter  sind,  unter 
Einhaltung  der  von  den  Gesetzen  festgestellten  Bedingungen,  fur  alle 
dazu  Befahigten  gleich  zuganglich. 

Art.  5.  Die  personliche  Freiheit  ist  gewahrleistet.  Die  Bedin- 
gungen und  Formen,  unter  welchen  eine   Beschrankung  derselben, 

3i5 


3 1 6  Appendix. 

insbesondere  eine  Verhaftung  zulassig  ist,  werden  durch  das  Gesetz 
bestimmt. 

Art.  6.  Die  Wohnung  ist  unverletzlich.  Das  Eindringen  in  dieselbe 
und  Haussuchungen,  sowie  die  Beschlagnahme  von  Briefen  und 
Papieren,  sind  nur  in  den  gesetzlich  bestimmten  Fallen  und  Formen 
gestattet. 

Art.  7.  Niemand  darfseinem  gesetzlichen  Richter  entzogen  werden. 
Ausnahmegerichte  und  ausserordentliche  Kommissionen  sind  un- 
statthaft. 

Art.  8.  Strafen  konnen  nur  in  Gemassheit  des  Gesetzes  angedroht 
oder  verhangt  werden. 

Art.  9.  Das  Eigenthum  ist  unverletzlich.  Es  kann  nur  aus  Grtinden 
des  offentlichen  Wohles  gegen  vorgangige,  in  dringenden  Fallen 
wenigstens  vorlaufig  festzustellende  Entschadigung  nach  Massgabe 
des  Gesetzes  entzogen  oder  beschrankt  werden. 

Art.  10.  Der  biirgerliche  Tod  und  die  Strafe  der  Vermogensein- 
ziehung  finden  nicht  statt. 

Art.  n.  Die  Freiheit  der  Auswanderung  kann  von  Staatswegen 
nur  in  Bezug  auf  die  Wehrpflicht  beschrankt  werden. 

Abzugsgelder  diirfen  nicht  erhoben  werden. 

Art.  12.  Die  Freiheit  des  religiosen  Bekenntnisses,  der  Vereini- 
gung  zu  Religionsgesellschaften  (Art.  30  und  31)  und  der  gemein- 
samen  hauslichen  und  offentlichen  Religionsiibung  wird  gewahrleistet. 
Der  Genuss  der  biirgerlichen  und  staatsburgerlichen  Rechte  ist  unab- 
hangig  von  dem  religiosen  Bekenntnisse.  Den  biirgerlichen  und 
staatsburgerlichen  Pflichten  darf  durch  die  Ausiibung  der  Religions- 
freiheit  kein  Abbruch  geschehen. 

Art.  13.  Die  Religionsgesellschaften,  so  wie  die  geistlichen  Gesell- 
schaften,  welche  keine  Korporationsrechte  haben,  konnen  diese 
Rechte  nur  durch  besondere  Gesetze  erlangen. 

Art.  14.  Die  christliche  Religion  wird  bei  denjenigen  Einrichtun- 
gen  des  Staats,  welche  mit  der  Religionsiibung  im  Zusammenhange 
stehen,  unbeschadet  der  im  Art.  1 2  gewahrleisteten  Religionsfreiheit, 
zura  Grunde  gelegt. 

Art.  15.    Vacat. 

Art.  16.    Vacat. 

Art.  17.  Ueber  das  Kirchenpatronat  und  die  Bedingungen,  unter 
welchen  dasselbe  aufgehoben  werden  kann,  wird  ein  besonderes 
Gesetz  ergehen. 

Art.  18.   Vacat. 


Verfassungs-  Urkundc  fur  den  Prcussischen  Staat.   3 1 7 

Art.  19.  Die  Einfiihrung  der  Civilehe  erfolgt  nach  Massgabe  eines 
besonderen  Gesetzes,  was  auch  die  Ftihrung  der  Civilstandsregister 
regelt. 

Art.  20.    Die  Wissenschaft  und  ihre  Lehre  ist  frei. 

Art.  21.  Fur  die  Bildung  der  Jugend  soil  durch  offentliche  Schulen 
genugend  gesorgt  werden. 

Aeltern  und  deren  Stellvertreter  diirfen  ihre  Kinder  oder  Pfiege- 
befohlenen  nicht  ohne  den  Unterricht  lassen,  welcher  fur  die  offent- 
lichen  Volksschulen  vorgeschrieben  ist. 

Art.  22.  Unterricht  zu  ertheilen  und  Unterrichtsanstalten  zu 
griinden  und  zu  leiten,  steht  Jedem  frei,  wenn  er  seine  sittliche,  wis- 
senschaftliche  und  technische  Befahigung  den  betreffenden  Staatsbe- 
horden  nachgewiesen  hat  (s.  Erlass  des  Minist.  der  geistlichen  &c. 
Angelegenheiten,  betr.  die  Ertheilung  von  Privat-Unterricht  gegen 
Bezahlung  durch  offentliche  Lehrer,  insbesondere  an  Schiiler  der 
eigenen  Klasse.  Oeffentliche  Lehrer  bediirfen  zur  Ertheilung  von 
Privat-Unterricht  eines  fur  Privatlehrer  erforderlichen  Erlaubniss- 
scheines  der  Ortsschulbehorde  nicht,  v.  6.  Octob.  1882  [Central- 
blatt  fur  die  Unterrichts-Venvalt.     S.  716]). 

Art.  23.  Alle  offentlichen  und  Privat-Unterrichts-  und  Erziehungs- 
anstalten  stehen  unter  der  Aufsicht  vom  Staate  ernannter  Behorden. 

Die  offentlichen  Lehrer  haben  die  Rechte  und  Pfiichten  der  Staats- 
diener. 

Art.  24.  Bei  der  Einrichtung  der  offentlichen  Volksschulen  sind 
die  konfessionellen  Verhaltnisse  moglichst  zu  beriicksichtigen. 

Den  religiosen  Unterricht  in  der  Volksschule  leiten  die  betreffenden 
Religionsgesellschaften. 

Die  Leitung  der  ausseren  Angelegenheiten  der  Volksschule  steht 
der  Gemeinde  zu.  Der  Staat  stellt,  unter  gesetzlich  geordneter 
Betheiligung  der  Gemeinden,  aus  der  Zahl  der  Befahigten  die  Lehrer 
der  offentlichen  Volksschulen  an. 

Art  25.  Die  Mittel  zur  Errichtung,  Unterhaltung  und  Erweiterung 
der  offentlichen  Volksschule  werden  von  den  Gemeinden  und,  im 
Falle  des  nachgewiesenen  Unvermogens,  erganzungsweise  vom  Staate 
aufgebracht.  Die  auf  besonderen  Rechtstiteln  beruhenden  Ver- 
pflichtungen  Dritter  bleiben  bestehen. 

Der  Staat  gewiihrleistet  demnach  den  Volksschullehrern  ein  festes, 
den  Lokalverhaltnissen  angemessenes  Einkommen. 

In  der  offentlichen  Volksschule  wird  der  Unterricht  unentgeltlich 
ertheilt. 


3 1 8  Appe?idix. 

Art.  26.   Ein  besonderes  Gesetz  regelt  das  ganze  Unterrichtswesen. 

Art.  27.  Jeder  Preusse  hat  das  Recht,  durch  Wort,  Schrift,  Druck 
und  bildliche  Darstellung  seine  Meinung  frei  zu  aussern. 

Die  Censur  darf  nicht  eingefiihrt  werden ;  jede  andere  Beschran- 
kung  der  Pressfreiheit  nur  im  Wege  der  Gesetzgebung. 

Art.  28.  Vergehen,  welche  durch  Wort,  Schrift,  Druck  oder  bild- 
liche Darstellung  begangen  werden,  sind  nach  den  allgemeinen 
Strafgesetzen  zu  bestrafen. 

Art.  29.  Alle  Preussen  sind  berechtigt,  sich  ohne  vorgangige  ob- 
rigkeitliche  Erlaubniss  friedlich  und  ohne  Waffen  in  geschlossenen 
Raumen  zu  versammeln. 

Diese  Bestimmung  bezieht  sich  nicht  auf  Versammlungen  unter 
freiem  Himmel,  welche  auch  in  Bezug  auf  vorgangige  obrigkeitliche 
Erlaubniss  der  Verfiigung  des  Gesetzes  unterworfen  sind. 

Art.  30.  Alle  Preussen  haben  das  Recht,  sich  zu  solchen  Zwecken, 
welche  den  Strafgesetzen  nicht  zuwiderlaufen,  in  Gesellschaften  zu 
vereinigen. 

Das  Gesetz  regelt,  insbesondere  zur  Aufrechthaltung  der  offent- 
lichen  Sicherheit,  die  Ausiibung  des  in  diesem  und  in  dem  vorstehen- 
den  Artikel  (29)  gewahrleisteten  Rechts. 

Politische  Vereine  konnen  Beschrankungen  und  voriibergehenden 
Verboten  im  Wege  der  Geseztgebung  unterworfen  werden. 

Art.  31.  Die  Bedingungen,  unter  welchen  Korporationsrechte 
ertheilt  oder  verweigert  werden,  bestimmt  das  Gesetz. 

Art.  32.  Das  Petitionsrecht  steht  alien  Preussen  zu.  Petitionen 
unter  einem  Gesammtnamen  sind  nur  Behorden  und  Korporationen 
gestattet. 

Art.  33.  Das  Briefgeheimniss  ist  unverletzlich.  Die  bei  strafgericht- 
lichen  Untersuchungen  und  in  Kriegsfallen  nothwendigen  Beschran- 
kungen sind  durch  die  Gesetzgebung  festzustellen. 

Art.  34.  Alle  Preussen  sind  wehrpfiichtig.  Den  Umfang  und  die 
Art  dieser  Pflicht  bestimmt  das  Gesetz. 

Art.  35.  Das  Heer  begreift  alle  Abtheilungen  des  stehenden  Heeres 
und  der  Landwehr. 

Im  Falle  des  Krieges  kann  der  Konig  nach  Massgabe  des  Gesetzes 
den  Landsturm  aufbieten. 

Art.  36.  Die  bewaffnete  Macht  kann  zur  Unterdnickung  innerer 
Unruhen  und  zur  Ausfiihrung  der  Gesetze  nur  in  den  vom  Gesetze 
bestimmten  Fallen  und  Formen  und  auf  Requisition  der  Civilbehorde 


Verfassungs-Urkunde  fur  den  Preussischen  Staat.  319 

verwendet  werden.  In  lezterer  Beziehung  hat  das  Gesetz  die  Aus- 
nahmen  zu  bestimmen. 

Art.  37.  Der  Militairgerichtsstand  des  Heeres  beschrankt  sich 
auf  Strafsachen  und  wird  durch  das  Gesetz  geregelt.  Die  Bestim- 
mungen  liber  die  Militairdisziplin  ira  Heere  bleiben  Gegenstand 
besonderer  Verordnungen. 

Art.  38.  Die  bewaffnete  Macht  darf  weder  in,  noch  ausser  dem 
Dienste  berathschlagen  oder  sich  anders,  als  auf  Befehl,  versammeln. 
Versammlungen  und  Vereine  der  Landwehr  zur  Berathung  militair- 
ischer  Einrichtungen,  Befehle  und  Anordnungen.  sind  auch  dann, 
wenn  dieselbe  nicht  zusammenberufen  ist,  untersagt. 

Art.  39.  Auf  das  Heer  finden  die  in  den  Artikeln  5.-6.-29.-30.  und 
32.  enthaltenen  Bestimmungen  nur  insoweit  Anwendung,  als  die  mili- 
tairischen  Gesetze  und  Dissiplinarvorschriften  nicht  entgegenstehen. 

Art.  40.    Die  Errichtung  von  Lehen  ist  untersagt. 

Der  in  Bezug  auf  die  vorhandenen  Lehen  noch  bestehende  Lehns- 
verband  soil  durch  gesetzliche  Anordnung  aufgelost  werden. 

Art.  41.  Die  Bestimmungen  des  Art.  40  finden  auf  Thronlehen  und 
auf  die  ausserhalb  des  Staats  liegenden  Lehen  keine  Anwendung. 

Art.  42.  Ohne  Entschadigung  bleiben  aufgehoben,  nach  Massgabe 
der  ergangenen  besonderen  Gesetze  :  1 )  das  mit  dem  Besitze  gewisser 
Grundstiicke  verbundene  Recht  der  Ausiibung  oder  Uebertragung  der 
richterlichen  Gewalt  (Tit.  VI.)  und  die  aus  diesem  Rechte  fliessenden 
Exemtionen  und  Abgaben ;  2)  die  aus  dem  gerichts-  und  schutzherr- 
lichen  Verbande,  der  friiheren  Erbunterthanigkeit,  der  fruheren 
Steuer-  und  Gewerbe-Verfassung  herstammenden  Verpflichtungen. 

Mit  den  aufgehobenen  Rechten  fallen  auch  die  Gegenleistungen 
und  Lasten  xveg,  welche  den  bisher  Berechtigten  dafiir  oblagen. 

TlTEL  III. VOM  KONIGE. 

Art.  43.   Die  Person  des  Konigs  ist  unverletzlich. 

Art.  44.  Die  Minister  des  Konigs  sind  verantwortlich.  Alle  Regi- 
erungsakte  des  Konigs  bediirfen  zu  ihrer  Giiltigkeit  der  Gegenzeich- 
nung  eines  Ministers,  welcher  dadurch  die  Verantwortlichkeit  iiber- 
nimmt. 

Art.  45.  Dem  Konige  allein  stent  die  vollziehende  Gewalt  zi  .  Er 
ernennt  und  entlasst  die  Minister.  Er  befiehlt  die  Verkiindigung  del 
Gesetze  und  erlasst  die  zu  deren  Ausfuhrung  nothigen  Verordnungen 

Art.  46.   Der  Konig  fiihrt  den  Oberbefehl  uber  das  Heer. 


3  2  o  Appendix. 

Art.  47.  Der  Konig  besetzt  alle  Stellen  im  Heere,  so  wie  in  den 
iibrigen  Zweigen  des  Staatsdienstes,  in  sofern  nicht  das  Gesetz  ein 
Anderes  verordnet. 

Art.  48.  Der  Konig  hat  das  Recht,  Krieg  zu  erklaren  und  Frieden 
zu  schliessen,  auch  andere  Vertriige  mit  fremden  Regierungen  zu 
errichten.  Letztere  bediirfen  zu  ihrer  Gtiltigkeit  der  Zustimmung 
der  Kammern,  sofern  es  Handelsvertrage  sind,  oder  wenn  dadurch 
dem  Staate  Lasten  oder  einzelnen  Staatsbiirgern  Verpfiichtungen 
auferlegt  werden. 

Art.  49.  Der  Konig  hat  das  Recht  der  Begnadigung  und  Straf- 
milderung. 

Zu  Gunsten  eines  wegen  seiner  Amtshandlungen  verurtheilten 
Ministers  kann  dieses  Recht  nur  auf  Antrag  derjenigen  Kammer 
ausgeiibt  werden,  von  welcher  die  Anklage  ausgegangen  ist. 

Der  Konig  kann  bereits  eingeleitete  Untersuchungen  nur  auf 
Grund  eines  besonderen  Gesetzes  niederschlagen. 

Art.  50.  Dem  Konige  steht  die  Verleihung  von  Orden  und  anderen 
mit  Vorrechten  nicht  verbundenen  Auszeichnungen  zu. 

Er  iibt  das  Miinzrecht  nach  Massgabe  des  Gesetzes. 

Art.  51.  Der  Konig  beruft  die  Kammern  und  schliesst  ihre  Sitzun- 
gen.  Er  kann  sie  entweder  beide  zugleich  oder  nur  eine  auflosen. 
Es  miissen  aber  in  einem  solchen  Falle  innerhalb  eines  Zeitraums 
von  sechszig  Tagen  nach  der  Auflosung  die  Wahler,  und  innerhalb 
eines  Zeitraums  von  neunzig  Tagen  nach  der  Auflosung  die  Kammern 
versammelt  werden. 

Art.  52.  Der  Konig  kann  die  Kammern  vertagen.  Ohne  deren 
Zustimmung  darf  diese  Vertagung  die  Frist  von  30  Tagen  nicht  iiber- 
steigen  und  wahrend  derselben  Session  nicht  wiederholt  werden. 

Art.  53.  Die  Krone  ist,  den  Kdniglichen  Hausgesetzen  gemass, 
erblich  in  dem  Mannsstamme  des  Koniglichen  Hauses  nach  dem 
Rechte  der  Erstgeburt  und  der  agnatischen  Linealfolge. 

Art.  54.  Der  Konig  wird  mit  Vollendung  des  achtzehnten  Lebens- 
jahres  volljahrig. 

Er  leistet  in  Gegenwart  der  vereinigten  Kammern  das  eidliche 
Gelobniss,  die  Verfassung  des  Konigreichs  fest  und  unverbriichlich 
zu  halten,  und  in  Uebereinstimmung  mit  derselben  und  den  Gesetzen 
zu  regieren. 

Art.  55.  Ohne  Einwilligung  beider  Kammern  kann  der  Konig 
nicht  zugleich  Herrscher  fremder  Reiche  sein. 

Art.  56.    Wenn  der  Konig  minderjahrig  oder  sonst  dauernd  ver- 


Verfassungs-  Urkunde  fur  den  Preussischen  Staat.   3  2 1 

hindert  ist,  selbst  zu  regieren,  so  iibernimmt  derjenige  volljahrige 
Agnat  (Art.  53.),  welcher  der  Krone  am  nachsten  steht,  die  Regent- 
schaft.  Er  hat  sofort  die  Kammern  zu  berufen,  die  in  vereinigter 
Sitzung  liber  die  Nothwendigkeit  der  Regentschaft  beschliessen. 

Art.  57.  Ist  kein  volljahriger  Agnat  vorhanden  und  nicht  bereits 
vorher  gesetzliche  Fursorge  fur  diesen  Fall  getroffen,  so  hat  das 
Staatsministerium  die  Kammern  zu  berufen,  welche  in  vereinigter 
Sitzung  einen  Regenten  erwahlen.  Bis  zum  Antritt  der  Regentschaft 
von  Seiten  desselben  fiihrt  das  Staatsministerium  die  Regierung. 

Art.  58.  Der  Regent  iibt  die  dem  Konige  zustehende  Gewalt  in 
dessen  Namen  aus.  Derselbe  schwort  nach  Einrichtung  der  Regent- 
schaft vor  den  vereinigten  Kammern  einen  Eid,  die  Verfassung  des 
Konigreichs  fest  und  unverbriichlich  zu  halten,  und  in  Ueberein- 
stimmung  mit  derselben  und  den  Gesetzen  zu  regieren. 

Bis  zu  dieser  Eidesleistung  bleibt  in  jedem  Falle  das  bestehende 
gesammte  Staatsministerium  fur  alle  Regierungshandlungen  verant- 
wortlich. 

Art.  59.  Dem  Kron-Fideikommisz-Fonds  verbleibt  die  durch  das 
Gesetz  vom  17.  Januar  1820,  auf  die  Einkiinfte  der  Domainen  und 
Forsten  angewiesene  Rente. 

Titel  IV.  —  Von  den  Ministern. 

Art.  60.  Die  Minister,  so  wie  die  zu  ihrer  Vertretung  abgeord- 
neten  Staatsbeamten  haben  Zutritt  zu  jeder  Kammer  und  miissen 
auf  ihr  Verlangen  zu  jeder  Zeit  gehort  werden. 

Jede  Kammer  kann  die  Gegenwart  der  Minister  verlangen. 

Die  Minister  haben  in  einer  oder  der  anderen  Kammer  nur  dann 
Stimmrecht,  wenn  sie  Mitglieder  derselben  sind. 

Art.  61.  Die  Minister  konnen  durch  Beschluss  einer  Kammer 
wegen  des  Verbrechens  der  Verfassungsverletzung,  der  Bestechung 
und  des  Verrathes  angeklagt  werden.  Ueber  solche  Anklage  ent- 
scheidet  der  oberste  Gerichtshof  der  Monarchic  in  vereinigten  Sena- 
ten.  So  lange  noch  zwei  oberste  Gerichtshofe  bestehen,  treten  die- 
selben  zu  obigem  Zwecke  zusammen. 

Die  naheren  Bestimmungen  iiber  die  Falle  der  Verantwortlichkeit, 
iiber  das  Verfahren  und  iiber  die  Strafen  werden  einem  besonderen 
Gesetze  vorbehalten. 


322  Appendix. 

Titel  V.  —  Von  den  Kammern. 

Art.  62.  Die  gesetzgebende  Gewalt  wird  gemeinschaftlich  durch 
den  Konig  und  durch  zwei  Kammern  ausgeiibt. 

Die  Uebereinstimmung  des  Konigs  und  beider  Kammern  ist  zu 
jedem  Gesetze  erforderlich. 

Finanzgesetz-Entwiirfe  und  Staatshaushalts-Etats  werden  zuerst  der 
Zweiten  Kamraer  vorgelegt ;  leztere  werden  von  der  Ersten  Kammer 
im  Ganzen  angenommen  oder  abgelehnt. 

Art.  63.  Nur  in  dem  Falle,  wenn  die  Aufrechthaltung  der  offent- 
lichen  Sicherheit,  oder  die  Beseitigung  eines  ungewohnlichen  Noth- 
standes  es  dringend  erfordert,  konnen,  insofern  die  Kammern  nicht 
versammelt  sind,  unter  Verantvvortlichkeit  des  gesammten  Staats- 
ministeriums,  Verordnungen,  die  der  Verfassung  nicht  zuwiderlaufen 
mit  Gesetzeskraft  erlassen  werden.  Dieselben  sind  aber  den  Kam- 
mern bei  ihrem  niichsten  Zusammentritt  zur  Genehmigung  sofort 
vorzulegen. 

Art.  64.  Dem  Konige,  so  wie  jeder  Kammer  steht  das  Recht  zu, 
Gesetze  vorzuschlagen. 

Gesetzesvorschlage,  welche  durch  eine  der  Kammern  oder  den 
Konig  verworfen  worden  sind,  konnen  in  derselben  Sitzungsperiode 
nicht  wieder  vorgebracht  werden. 

Art.  65-68.  Die  Erste  Kammer  wird  durch  Konigliche  Anord- 
nung  gebildet,  welche  nur  durch  ein  mit  Zustimmung  der  Kammern 
zu  erlassendes  Gesetz  abgeandert  werden  kann. 

Die  Erste  Kammer  wird  zusammengesetzt  aus  Mitgliedern,  welche 
der  Konig  mit  erblicher  Berechtigung  oder  auf  Lebenszeit  beruft. 

Art.  69.  Die  Zweite  Kammer  besteht  aus  dreihundert  zwei  und 
funfzig  Mitgliedern.  Die  Wahlbezirke  werden  durch  das  Gesetz  fest- 
gestellt.  Sie  konnen  aus  einem  oder  mehreren  Kreisen  oder  aus 
einer  oder  mehreren  der  grosseren  Stadte  bestehen. 

Art.  70.  Jeder  Preusse,  welcher  das  fiinf  und  zwanzigste  Lebens- 
jahr  vollendet  hat  und  in  der  Gemeinde,  in  welcher  er  seinen  Wohn- 
sitz  hat,  die  Befahigung  zu  den  Gemeindewahlen  besitzt,  ist  stimm 
berechtigter  Urwahler. 

Wer  in  mehreren  Gemeinden  an  den  Gemeindewahlen  Theil  zu 
nehmen  berechtigt  ist,  darf  das  Recht  als  Urwahler  nur  in  einer 
Gemeinde  ausiiben. 

Art.  71.  Auf  jede  Vollzahl  von  zwei  hundert  und  funfzig  Seelen 
der  Bevolkerung  ist  ein  Wahlmann  zu  Wahlen.     Die  Urwahler  wer- 


Ver fas  sung s-Urkunde  fur  den  Preusszsc/ien  Staat.  323 

den  nach  Massgabe  der  von  ihnen  zu  entrichtenden  direkten  Staats- 
steuern  in  drei  Abtheilungen  getheilt,  und  zwar  in  der  Art,  dass  auf 
jede  Abtheilung  ein  Dritttheil  der  Gesammtsumme  der  Steuerbetrage 
aller  Urwahler  fallt. 

Die  Gesammtsumme  wird  berechnet :  a)  gemeindeweise,  falls  die 
Gemeinde  einen  Urwahlbezirk  fur  sich  bildet ;  b)  bezirksweise,  falls 
der  Urwahlbezirk  aus  mehreren  Gemeinden  zusammengesezt  ist. 

Die  erste  Abtheilung  besteht  aus  denjenigen  Urwahlern,  auf  welche 
die  hochsten  Steuerbetrage  bis  zum  Belaufe  eines  Dritttheils  der 
Gesammtsteuer  fallen. 

Die  zweite  Abtheilung  besteht  aus  denjenigen  Urwahlern,  auf  welche 
die  nachst  niedrigeren  Steuerbetrage  bis  zur  Granze  des  zweiten  Dritt- 
theils fallen. 

Die  dritte  Abtheilung  besteht  aus  den  am  niedrigsten  besteuerten 
Urwahlern,  auf  welche  das  dritte  Dritttheil  fallt. 

Jede  Abtheilung  wahlt  besonders,  und  zwar  ein  Dritttheil  der  zu 
wiihlenden  Wahlmanner. 

Die  Abtheilungen  konnen  in  mehrere  Wahlverbande  eingetheilt 
werden,  deren  keiner  mehr  als  funfhundert  Urwahler  in  sich  schliessen 
darf. 

Die  Wahlmanner  werden  in  jeder  Abtheilung  aus  der  Zahl  der 
stimmberechtigten  Urwahler  des  Urwahlbezirks  ohne  Riicksicht  auf 
die  Abtheilungen  gewahlt. 

Art.  72.   Die  Abgeordneten  werden  durch  die  Wahlmanner  gewahlt. 

Das  Nahere  iiber  die  Ausfuhrung  der  Wahlen  bestimmt  das  Wahl- 

gesetz,  welches  auch  die  Anordnung  fur  diejenigen  Stadte  zu  treffen 

hat,  in  denen  an  Stelle  eines  Theils  der  direkten  Steuern  die  Mahl- 

und  Schlachtsteuer  erhoben  wird. 

Art.  73.  Die  Legislatur-Periode  der  Zweiten  Kammer  wird  auf 
fiinf  Jahre  festgesetzt. 

Art.  74.  Zum  Abgeordneten  der  Zweiten  Kammer  ist  jeder  Preusse 
wahlbar,  der  das  dreissigste  Lebensjahr  vollendet,  den  Vollbesitz  der 
biirgerlichen  Rechte  in  Folge  rechtskraftigen  richterlichen  Erkennt- 
nisses  nicht  verloren  und  bereits  drei  Jahre  dem  Preussischen  Staats- 
verbande  angehort  hat.  Der  President  und  die  Mitglieder  der  Ober- 
Rechnungskammer  konnen  nicht  Mitglieder  eines  der  beiden  Hauser 
des  Landtages  sein. 

Art.  75.  Die  Kammern  werden  nach  Ablauf  ihrer  Legislatur-Periode 
neu  gewahlt.  Ein  Gleiches  geschieht  im  Falle  der  Auflosung.  In 
beiden  Fallen  sind  die  bisherigen  Mitglieder  wahlbar. 


324  Appendix. 

Art.  76.  Die  beiden  Hauser  des  Landtages  der  Monarchic  (die 
Kammern)  werden  durch  den  Konig  regelmassig  in  dem  Zeitraum 
von  dem  Anfange  des  Monats  November  jeden  Jahres  bis  zur  Mitte 
des  folgenden  Januar  und  ausserdem,  so  oft  es  die  Umstande  erhei- 
schen,  einberufen. 

Art.  77.  Die  Eroffnung  und  die  Schliessung  der  Kammern  ge- 
schieht  durch  den  Konig  in  Person  oder  durch  einen  dazu  von  Ihm 
beauftragten  Minister  in  einer  Sitzung  der  vereinigten  Kammern. 

Beide  Kammern  werden  gleichzeitig  berufen,  eroffnet,  vertagt  und 
geschlossen. 

Wird  eine  Kammer  aufgelost,  so  wird  die  andere  gleichzeitig 
vertagt. 

Art.  78.  Jede  Kammer  pruft  die  Legitimation  ihrer  Mitglieder 
und  entscheidet  daruber.  Sie  regelt  ihren  Geschaftsgang  und  ihre 
Disziplin  durch  eine  Geschaftsordnung  und  erwahlt  ihren  Prasi- 
denten,  ihre  Viceprasidenten  und  Schriftflihrer. 

Beamte  bediirfen  keines  Urlaubs  zum  Eintritt  in  die  Kammer. 

Wenn  ein  Kammer-Mitglied  ein  besoldetes  Staatsamt  annimmt 
oder  im  Staatsdienste  in  ein  Amt  eintritt,  mit  welchem  ein  hoherer 
Rang  oder  ein  hoheres  Gehalt  verbunden  ist,  so  verliert  es  Sitz  und 
Stimme  in  der  Kammer  und  kann  seine  Stelle  in  derselben  nur  durch 
neue  Wahl  vvieder  erlangen. 

Niemand  kann  Mitglied  beider  Kammern  sein. 

Art.  79.  Die  Sitzungen  beider  Kammern  sind  offentlich.  Jede 
Kammer  tritt  auf  den  Antrag  ihres  Prasidenten  oder  von  zehn  Mit- 
gliedern  zu  einer  geheimen  Sitzung  zusammen,  in  welcher  dann 
zunachst  iiber  diesen  Antrag  zu  beschliessen  ist. 

Art.  80.  Keine  der  beiden  Kammern  kann  einen  Beschluss  fassen, 
wenn  nicht  die  Mehrheit  der  gesetzlichen  Anzahl  ihrer  Mitglieder 
anwesend  ist.  Jede  Kammer  fasst  ihre  Beschlusse  nach  obsoluter 
Stimmenmehrheit,  vorbehaltlich  der  durch  die  Geschaftsordnung  fur 
Wahlen  etwa  zu  bestimmenden  Ausnahmen. 

Art.  81.  Jede  Kammer  hat  fur  sich  das  Recht,  Adressen  an  den 
Konig  zu  richten. 

Niemand  darf  den  Kammern  oder  einer  derselben  in  Person  eine 
Bittschrift  oder  Adresse  iiberreichen. 

Jede  Kammer  kann  die  an  sie  gerichteten  Schriften  an  die  Min- 
ister iiberweisen  und  von  denselben  Auskunft  iiber  eingehende 
Beschwerden  verlangen. 


Verfassungs-Urkunde  fur  den  Preussischen  Staat.  325 

Art.  82.  Eine  jede  Kammer  hat  die  Befugniss,  Behufs  ihrer  Infor- 
mation Kommissionen  zur  Untersuchung  von  Thatsachen  zu  ernennen. 

Art.  83.  Die  Mitglieder  beider  Kammern  sind  Vertreter  des  gan- 
zen  Volkes.  Sie  stimmen  nach  ihrer  freien  Ueberzeugung  und  sind 
an  Auftrage  und  Instruktionen  nicht  gebunden. 

Art.  84.  Sie  konnen  fur  ihre  Abstimmungen  in  der  Kammer  nie- 
mals,  fur  ihre  darin  ausgesprochenen  Meinungen  nur  innerhalb  der 
Kammer  auf  den  Grund  der  Geschaftsordnung  (Art.  78.)  zur  Rechen- 
schaft  gezogen  werden. 

Kein  Mitglied  einer  Kammer  kann  ohne  deren  Genehmigung 
wahrend  der  Sizungsperiode  wegen  einer  mit  Strafe  bedrohten  Hand- 
lung  zur  Untersuchung  gezogen  oder  verhaftet  werden,  ausser  wenn 
es  bei  Ausiibung  der  That  oder  im  Laufe  des  nachstfolgenden  Tages 
nach  derselben  ergriffen  wird. 

Gleiche  Genehmigung  ist  bei  einer  Verhaftung  wegen  Schulden 
nothwendig. 

Jedes  Strafverfahren  gegen  ein  Mitglied  der  Kammer  und  eine 
jede  Untersuchungs-  oder  Civilhaft  wird  fur  die  Dauer  der  Sitzungs- 
periode  aufgehoben,  wenn  die  betreffende  Kammer  es  verlangt. 

Art.  85.  Die  Mitglieder  der  Zweiten  Kammer  erhalten  aus  der 
Staatskasse  Reisekosten  und  Diaten  nach  Massgabe  des  Gesetzes. 
Ein  Verzicht  hierauf  ist  unstatthaft. 


Titel  VI.  —  Von  der  richterlichen  Gewalt. 

Art.  86.  Die  richterliche  Gewalt  wird  im  Namen  des  Konigs  durch 
unabhangige,  keiner  anderen  Autoritat  als  der  des  Gesetzes  unter- 
worfene  Gerichte  ausgeiibt. 

Die  Urtheile  werden  im  Namen  des  Konigs  ausgefertigt  und 
vollstreckt. 

Art.  87.  Die  Richter  werden  vom  Konige  oder  in  dessen  Namen 
auf  ihre  Lebenszeit  ernannt. 

Sie  Konnen  nur  durch  Richterspruch  aus  Grtinden,  welche  die 
Gesetze  vorgesehen  haben,  ihres  Amtes  entsetzt  oder  zeitweise  entho- 
ben  werden.  Die  vorlaufige  Amtssuspension,  welche  nicht  kraft 
des  Gesetzes  eintritt,  und  die  unfreiwillige  Versetzung  an  eine  andere 
Stelle  oder  in  den  Ruhestand  konnen  nur  aus  den  Ursachen  und 
unter  den  Formen,  welche  im  Gesetze  angegeben  sind,  und  nur  auf 
Grund  eines  richterlichen  Beschlusses  erfolgen. 

Auf  die  Versetzungen,  welche  durch  Veranderungen  in  der  Organ- 


326  Appendix. 

isation  der  Gerichte  oder  ihrer  Bezirke  nothig  werden,  finden  diese 
Bestimmungen  keine  Anwendung. 

Art.  87a.  Bei  der  Bildung  gemeinschaftlicher  Gerichte  fur  preus- 
sische  Gebietstheile  und  Gebiete  anderer  Bundesstaaten  sind  Ab- 
weichungen  von  den  Bestimmungen  des  Artikels  86  und  des  ersten 
Absatzes  im  Artikel  87  zulassig.  Ges.  vom  19.  Februar  1879  (Ges.-S. 
S.  18). 

Art.  88.    Aufgehoben. 

Art.  89.  Die  Organisation  der  Gerichte  wird  durch  das  Gesetz 
bestimmt. 

Art.  90.  Zu  einem  Richteramte  darf  nur  der  berufen  werden, 
welcher  sich  zu  demselben  nach  Vorschrift  der  Gesetze  befahigt  hat. 

Art.  91.  Gerichte  fur  besondere  Klassen  von  Angelegenheiten, 
insbesondere  Handels-  und  Gewerbegerichte,  sollen  im  Wege  der 
Gesetzgebung  an  den  Orten  errichtet  werden,  wo  das  Bediirfniss 
solche  erfordert. 

Die  Organisation  und  Zustiindigkeit  solcher  Gerichte,  das  Ver- 
fahren  bei  denselben,  die  Ernennung  ihrer  Mitglieder,  die  besonderen 
Verhaltnisse  der  lezteren  und  die  Dauer  ihres  Amtes  werden  durch 
das  Gesetz  festgestellt. 

Art.  92.  Es  soil  in  Preussen  nur  Ein  oberster  Gerichtshof  be- 
stehen. 

Art.  93.  Die  Verhandlungen  vor  dem  erkennenden  Gerichte  in 
Civil-  und  Strafsachen  sollen  offentlich  sein.  Die  Oeffentlichkeit  kann 
jedoch  durch  einen  offentlich  zu  verkiindenden  Beschluss  des  Ge- 
richts  ausgeschlossen  werden,  wenn  sie  der  Ordnung  oder  den  guten 
Sitten  Gefahr  droht. 

In  anderen  Fallen  kann  die  Oeffentlichkeit  nur  durch  Gesetze 
beschrankt  werden. 

Art.  94.  Bei  Verbrechen  erfolgt  die  Entscheidung  iiber  die  Schuld 
des  Angeklagten  durch  Geschworene,  insoweit  ein  mit  vorheriger 
Zustimmung  der  Kammern  erlassenes  Gesetz  nicht  Ausnahmen  be- 
stimmt.    Die  Bildung  des  Geschworenengerichts  regelt  das  Gesetz. 

Art.  95.  Es  kann  durch  ein  mit  vorheriger  Zustimmung  der 
Kammern  zu  erlassendes  Gesetz  ein  besonderer  Gerichtshof  errichtet 
werden,  dessen  Zustandigkeit  die  Verbrechen  des  Hochverraths  und 
diejenigen  Verbrechen  gegen  die  innere  und  aussere  Sicherheit  des 
Staats,  welche  ihm  durch  das  Gesetz  uberwiesen  werden,  begreift. 

Art.  96.  Die  Kompetenz  der  Gerichte  und  Verwaltungsbehorden 
wird  durch  das  Gesetz  bestimmt.     Ueber  Kompetenz-Konflikte  zwi- 


Verfassungs-Urkunde  fur  den  Preussischen  Staat.   327 

schen  den  Verwaltungs-  und  Gerichtsbehorden  entscheidet  ein  durch 
das  Gesetz  bezeichneter  Gerichtshof. 

Art.  97.  Die  Bedingungen,  unter  welchen  offentliche  Civil-  und 
Militairbeamte  wegen  durch  Ueberschreitung  ihrer  Amtsbefugnisse 
verubter  Rechtsverletzungen  gerichtlich  in  Anspruch  genommen  wer- 
den  konnen,  bestimmt  das  Gesetz.  Eine  vorgangige  Genehmigung 
der  vorgesetzten  Dienstbehorde  darf  jedoch  nicht  verlangt  werden. 

Titel  VII.  —  Von  den  nicht  zum  Richterstande  gehorigen 

Staatsbeamten. 

Art.  98.  Die  besonderen  Rechtsverhaltnisse  der  nicht  zum  Richter- 
stande gehorigen  Staatsbeamten,  einschliesslich  der  Staats- Anwalte, 
sollen  durch  ein  Gesetz  geregelt  werden,  welches,  ohne  die  Regierung 
in  der  Wahl  der  ausfuhrenden  Organe  zweckwidrig  zu  beschranken, 
den  Staatsbeamten  gegen  willkiirliche  Entziehung  von  Amt  und  Ein- 
kommen  angemessenen  Schutz  gewahrt. 


Titel  VIII. — Von  den  Finanzen. 

Art.  99.  Alle  Einnahmen  und  Ausgaben  des  Staats  miissen  fiir 
jedes  Jahr  im  Voraus  veranschlagt  und  auf  den  Staatshaushalts-Etat 
gebracht  werden 

Lezterer  wird  jahrlich  durch  ein  Gesetz  festgestellt. 

Art.  100.  Steuern  und  Abgaben  fur  die  Staatskasse  diirfen  nur, 
so  weit  sie  in  den  Staatshaushalts-Etat  aufgenommen  oder  durch 
besondere  Gesetze  angeordnet  sind,  erhoben  werden. 

Art.  101.  In  Betreff  der  Steuern  konnen  Bevorzugungen  nicht  ein- 
gefiihrt  werden. 

Die  bestehende  Steuergesetzgebung  wird  einer  Revision  unter- 
worfen  und  dabei  jede  Bevorzugung  abgeschafft. 

Art.  102.  Gebiihren  konnen  Staats-  oder  Kommunalbeamte  nur 
auf  Grund  des  Gesetzes  erheben. 

Art.  103.  Die  Aufhahme  von  Anleihen  fiir  die  Staatskasse  findet 
nur  auf  Grund  eines  Gesetzes  statt.  Dasselbe  gilt  von  der  Ueber- 
nahme  von  Garantien  zu  Lasten  des  Staats. 

Art.  104.  Zu  Etats-Ueberschreitungen  ist  die  nachtragliche  Geneh- 
migung der  Kammern  erforderlich. 

Die  Rechnungen  iiber  den  Staatshaushalts-Etat  werden  von  der 
Ober-Rechnungskammer  gepriift   und  festgestellt.     Die  allgemeine 


J 


28  Appendix. 


Rechnung  liber  den  Staatshaushalt  jeden  Jahres,  einschliesslich  einei 
Uebersicht  der  Staatsschulden,  wird  mit  den  Bemerkungen  der  Ober- 
Rechnungskammer  zur  Entlastung  der  Staatsregierung  den  Kammern 
vorgelegt. 

Ein  besonderes  Gesetz  wird  die  Einrichtung  und  die  Befugnisse  der 
Ober-Rechnungskammer  bestimmen. 

Titel  IX. — Von  den  Gemeinden,  Kreis-,  Bezirks-  und 

Provinzial-Verbanden. 

Art.  105.  Die  Vertretung  und  Verwaltung  der  Gemeinden,  Kreise 
und  Provinzen  des  Preusisschen  Staats  wird  durch  besondere  Gesezte 
naher  bestimmt. 

Allgemeine  Bestimmungen. 

Art.  106.  Gesetze  und  Verordnungen  sind  verbindlich,  wenn  sie  in 
der  vom  Gesetze  vorgeschriebenen  Form  bekannt  gemacht  worden 
sind. 

Die  Pruning  der  Rechtsgiiltigkeit  gehorig  verktindeter  Konig- 
licher  Verordnungen  steht  nicht  den  Behorden,  sondern  nur  den 
Kammern  zu. 

Art.  107.  Die  Verfassung  kann  auf  dem  ordentlichen  Wege  der 
Gesetzgebung  abgeandert  werden,  wobei  in  jeder  Kammer  die 
gewohnliche  absolute  Stimmenmehrheit,  bei  zwei  Abstimmungen, 
zwischen  welchen  ein  Zeitraum  von  wenigstens  ein  und  zwanzig  Tagen 
liegen  muss,  geniigt. 

Art.  108.  Die  Mitglieder  der  beiden  Kammern  und  alle  Staats- 
beamten  leisten  dem  Konige  den  Eid  der  Treue  und  des  Gehor- 
sams,  und  beschworen  die  gewissenhafte  Beobachtung  der  Verfassung. 

Eine  Vereidigung  des  Heeres  auf  die  Verfassung  findet  nicht 
statt. 

Art.  109.  Die  bestehenden  Steuern  und  Abgaben  werden  forter- 
hoben  und  alle  Bestimmungen  der  bestehenden  Gesetzbiicher,  einzel- 
nen  Gesetze  und  Verordnungen,  welche  der  gegenwartigen  Verfassung 
nicht  zuwiderlaufen,  bleiben  in  Kraft,  bis  sie  durch  ein  Gesetz  abgean- 
dert werden. 

Art.  no.  Alle  durch  die  bestehenden  Gesetze  angeordneten  Behor 
—  den  bleiben  bis  zur  Ausfuhrung  der  sie  betreffenden  organischen 
Gesetze  in  Thatigkeit. 

Art.  in.    Fur  ben  Fall  eines  Krieges  oder  Aufruhrs  konnen  bei 


Verfassungs-  Urkundefilr  den  Preussiscken  Staat.    329 

dringender  Gefahr  fur  die  offentliche  Sicherheit  die  Artikel  5.  6.  7. 
27.  28.  29.  30.  und  34.  der  Verfassungs-Urkunde  zeit-  und  distrikts- 
weise  ausser  Kraft  gesetzt  werden.    Das  Nahere  bestimmt  das  Gesetz. 

Uebergangsbestimmungen. 

Art.  112.  Bis  zum  Erlass  des  im  Artikel  26.  vorgesehenen  Gesetzes 
bewendet  es  hinsichtlich  des  Schul-und  Unterrichtswesens  bei  den 
jetzt  geltenden  gesetzlichen  Bestimmungen. 

Art.  113.  Vor  der  erfolgten  Revision  des  Strafrechts  wird  iiber 
Vergehen,  welche  durch  Wort,  Schrift,  Druck  oder  bildliche  Dar- 
stellung  begangen  werden,  ein  besonderes  Gesetz  ergehen. 

Art.  114.    Vacat. 

Art.  115.  Bis  zum  Erlasse  des  im  Artikel  72.  vorgesehenen  Wahl- 
gesetzes  bleibt  die  Verordnung  vom  30.,  Mai  1849.,  die  Wahl  der  Ab- 
geordneten  zur  Zweiten  Kammer  betreffend,  in  Kraft. 

Art.  116.  Die  noch  bestehenden  beiden  obersten  Gerichtshofe 
sollen  zu  einem  Einzigen  vereinigt  werden.  Die  Organisation  erfolgt 
durch  ein  besonderes  Gesetz. 

Art.  117.  Auf  die  Anspruche  der  vor  Verkiindigung  der  Verfas- 
sungs-Urkunde etatsmassig  angestellten  Staatsbeamten  soil  im  Staats- 
dienergesetz  besondere  Riicksicht  genommen  werden. 

Art.  118.  Sollten  durch  die  fur  den  Deutschen  Bundesstaat  auf 
Grand  des  Entwurfs  vom  26.  Mai  1849.  festzustellende  Verfassung 
Abanderangen  der  gegenwartigen  Verfassung  noting  werden,  so  wird 
der  Konig  dieselben  anordnen  und  diese  Anordnungen  den  Kamm- 
ern  bei  ihrer  nachsten  Versammlung  mittheilen. 

Die  Kammern  werden  dann  Beschluss  dartiber  fassen,  ob  die  vor- 
laufig  angeordneten  Abanderangen  mit  der  Verfassung  des  Deut- 
schen Bundesstaats  in  Uebereinstimmung  stehen. 

Art.  119.  Das  im  Artikel  54.  erwahnte  eidliche  Gelobniss  des 
Konigs,  so  wie  die  vorgeschriebene  Vereidigung  der  beiden  Kamm- 
ern und  aller  Staatsbeamten,  erfolgen  sogleich  nach  der  auf  dem 
Wege  der  Gesetzgebung  vollendeten  gegenwartigen  Revision  dieser 
Verfassung.      (Art.  62.  und  108.). 

Urkundlich  unter  Unserer  Hochsteigenhandigen  Unterschrift  und 
beigedrucktem  Koniglichen  Insiegel. 

Gegeben  Charlottenburg,  den  31.  Januar  1850. 

(L.  S.)  Friedrich  Wilhelm. 

Graf  von  Brandenburg,      von   Ladenberg.      von  Manteuffel.      von 
Strotha.     von  der  Heydt.     von  Rabe.     Simons,     von  Schleinitz. 


APPENDIX    IV. 


1X>IS   CONSTITUTIONNELLES 


APPENDIX    IV. 

LOIS    CONSTITUTIONNELLES. 
Loi  Relative  a  L'Organisation  des  Pouvoirs  Publics. 

25-28  fevrier  1875. 

Art.  1.  Le  pouvoir  l£gislatif  s'exerce  par  deux  Assemblies:  la 
Chambre  des  d£put£s  et  le  Senat. 

La  Chambre  des  d£put£s  est  nomm£e  par  le  suffrage  universel,  dans 
les  conditions  determinees  par  la  loi  electorate. 

La  composition,  le  mode  de  nomination  et  les  attributions  du  Senat 
seront  regies  par  une  loi  speciale. 

Art.  2.  Le  President  de  la  Republique  est  elu  a  la  majority  abso- 
lue  des  suffrages  par  le  S£nat  et  par  la  Chambre  des  deputes  r^unis 
en  Assemble  nationale. 

II  est  nomme  pour  sept  ans.     II  est  reeligible. 

Art.  3.  Le  President  de  la  Republique  a  l'initiative  des  lois,  con- 
curremment  avec  les  membres  des  deux  Chambres.  II  promulgue 
les  lois  lorsqu'elles  ont  et£  voters  par  les  deux  Chambres ;  il  en  sur- 
veille  et  en  assure  l'execution. 

II  a  le  droit  de  faire  grace  ;  les  amnisties  ne  peuvent  etre  accordees 
que  par  une  loi. 

II  dispose  de  la  force  arm£e. 

II  nomme  a  tous  les  emplois  civils  et  militaires. 

II  preside  aux  polennit^s  nationales ;  les  envoy£s  et  les  ambassa- 
deurs  des  puissances  6trangeres  sont  accredited  aupres  de  lui. 

Chacun  des  actes  du  President  de  la  Republique  doit  etre  contre- 
signe'  par  un  ministre. 

Art.  4.  Au  fur  et  a  mesure  des  vacances  qui  se  produiront  a  partir 
de  la  promulgation  de  la  presente  loi,  le  President  de  la  Republique 
nomme,  en  conseil  des  ministres,  les  conseillers  d'Etat  en  service 
ordinaire. 

Art.  5.  Le  President  de  la  Republique  pent,  sur  1'avis  conforme 
du  Senat,  dissoudre  la  Chambre  des  deputes  avant  l'expiration  legale 
de  son  mandat. 

333 


334  Appendix. 

En  ce  cas,  les  colleges  eiectoraux  sont  reunis  pour  de  nouvelles 
Elections  dans  le  delai  de  deux  mois,  et  la  Chambre  dans  les  dix 
jours  qui  suivront  la  cloture  des  operations  electorates.1 

Art.  6.  Les  ministres  sont  solidairement  responsables  devant  les 
Chambres  de  la  politique  generate  du  gouvernement,  et  individuelle- 
ment  de  leurs  actes  personnels. 

Le  President  de  la  Republique  n'est  responsable  que  dans  le  cas 
de  haute  trahison. 

Art.  7.  En  cas  de  vacance  par  deces  ou  pour  toute  autre  cause, 
les  deux  chambres  rdJunies  procedent  immediatement  a  l'election 
d'un  nouveau  President. 

Dans  l'intervalle,  le  conseil  des  ministres  est  investi  du  pouvoir 
ex^cutif. 

Art.  8.  Les  Chambres  auront  le  droit,  par  deliberations  s£parees, 
prises  dans  chacune  a  la  majorite  absolue  des  voix,  soit  spontan£ment, 
soit  sur  la  demande  du  President  de  la  Republique,  de  declarer 
qu'il  y  a  lieu  de  reviser  les  lois  constitutionnelles. 

Apres  que  chacune  des  deux  Chambres  aura  pris  cette  resolution, 
elles  se  reuniront  en  Assemblee  nationale  pour  proc^der  a  la  revision. 

Les  deliberations  portant  revision  des  lois  constitutionnelles,  en 
tout  en  partie,  devront  etres  prises  a  la  majorite  absolue  des  mem- 
bres  composant  l'Assembiee  nationale. 

La  form  republicaine  du  Gouvernement  ne  peut  faire  l'objet  d'une 
proposition  de  revision.2 

Les  membres  des  families  ayant  regne  sur  la  France  sont  ineligible 
k  la  Presidence  de  la  Republique.3 

Loi  Relative  a  L'Organization  du  Senat. 

24-28  fevrier,  1875. 

Arts.  1-7  abroges. 

Art.  8.  Le  Senat  a,  concurremment  avec  la  Chambre  des  deputes, 
initiative  et  la  confection  des  lois.  Toutefois,  les  lois  de  finances 
doivent  etre,  en  premier  lieu,  presentees  a  la  Chambre  des  deputes 
et  votces  par  elle. 

Art.  9.  Le  Senat  peut  etre  constitue  en  cour  de  justice  pour  juger, 
soit  le  President  de  la  Republique,  soit  les  ministres,  et  pour  connaitre 
des  attentats  commis  contre  la  surete  de  l'Etat. 

1  Loi  constitutionnelle  des  13-14  aofit  1884,  art.  I. 

2  Ibid.  art.  2.  3  Ibid.  art.  2. 


Lois  Constitutionnelles.  335 

LOI    COXSTITUTIONNELLE    SUR    LES    RAPPORTS    DES    POUVOIRS    PUBLICS. 
16—18  juillet  1875. 

Art.  1.  Le  Senat  et  la  Chambre  des  deputes  se  reunissent  chaque 
annee  le  second  mardi  de  Janvier,  a.  moins  d'une  convocation  ante- 
rieure  faite  par  le  President  de  la  Republique. 

Les  deux  Chambres  doivent  etre  reunies  en  session  cinq  mois  au 
moins  chaque  annee.  La  session  de  l'une  commence  et  finit  en 
meme  temps  que  celle  de  l'autre. 

Art.  2.  Le  President  de  la  Republique  prononce  la  cloture  de  la 
session.  II  a  le  droit  de  convoquer  extraordinairement  les  Chambres. 
II  devra  les  convoquer  si  la  demande  en  est  faite,  dans  l'intervalle 
des  sessions,  par  la  majorite  absolue  des  membres  composant  chaque 
Chambre. 

Le  President  peut  ajourner  les  Chambres.  Toutefois,  l'ajourne- 
ment  ne  peut  exceder  le  terme  d'un  mois  ni  avoir  lieu  plus  de  deux 
fois  dans  la  meme  session. 

Art.  3.  Un  mois  au  moins  avant  le  terme  legal  des  pouvoirs  du 
President  de  la  Republique,  les  Chambres  devront  etre  reunies  en 
Assemblee  nationale  pour  proc£der  a  l'election  du  nouveau  President. 

A  defaut  de  convocation,  cette  reunion  aurait  lieu  de  plein  droit 
le  quinzieme  jour  avant  l'expiration  de  ces  pouvoirs. 

En  cas  de  deces  ou  de  demission  du  President  de  la  Republique, 
les  deux  Chambres  se  reunissent  immediatement  et  de  plein  droit. 

Dans  le  cas  011,  par  application  de  Particle  5  de  la  loi  du  25 
fevrier,  1875,  la  Chambre  des  deputes  se  trouverait  dissoute  au 
moment  011  la  Presidence  de  la  Republique  deviendrait  vacante,  les 
colleges  electoraux  seraient  aussitot  convoques,  et  le  Senat  se  reuni- 
rait  de  plein  droit. 

Art.  4.  Toute  assemblee  de  l'une  des  deux  Chambres  qui  serait 
tenue  hors  du  temps  de  la  session  commune  est  illicite  et  nulle  de 
plein  droit,  sauf  le  sas  prevu  par  l'article  precedent  et  celui  011  le 
Senat  est  reuni  comme  Cour  de  justice  ;  et,  dans  ce  dernier  cas,  il 
ne  peut  exercer  que  des  fonctions  judiciaires. 

Art.  5.  Les  seances  du  Senat  et  celles  de  la  Chambre  des  deputes 
sont  publiques. 

Neanmoins,  chaque  Chambre  peut  se  former  en  comite  secret,  sur  la 
demande  d'un  certain  nombre  de  ses  membres,  fixe  par  le  reglement. 

Elle  decide  ensuite,  a  la  majorite  absolue,  si  la  seance  doit  etre 
reprise  en  public  sur  le  meme  sujet. 


336  Appendix. 

Art.  6.  Le  President  de  la  Republique  communique  avec  les 
Chambres  par  des  messages  qui  sont  lus  a  la  tribune  par  un  ministre. 

Les  ministres  ont  leur  entree  dans  les  deux  Chambres  et  doivent 
etre  entendus  quand  ils  le  demandent.  lis  peuvent  se  faire  assister 
par  des  commissaires  designes,  pour  la  discussion  d'un  projet  de  loi 
determine,  par  decret  du  President  de  ^a  Republique. 

Art.  7.  Le  President  de  la  Republique  promulgue  les  lois  dans  le 
mois  qui  suit  la  transmission  au  gouvernement  de  la  loi  definitive- 
ment  adoptee.  II  doit  promulguer  dans  les  trois  jours  les  lois  dont 
la  promulgation,  par  un  vote  expres  dans  l'une  et  l'autre  Chambre, 
aura  ete  declaree  urgente. 

Dans  le  delai  fixe  pour  la  promulgation,  le  President  de  la  Repu- 
blique peut,  par  un  message  motive,  demander  aux  deux  Chambres 
une  nouvelle  deliberation  qui  ne  peut  etre  refusee. 

Art.  S.  Le  President  de  la  Republique  negocie  et  ratifie  les  traites. 
II  en  donne  connaissance  aux  Chambres  aussitot  que  l'interet  et  la 
surete  de  l'Etat  le  permettent. 

Les  traites  de  paix,  de  commerce,  les  traites  qui  engagent  les 
finances  de  l'Etat,  ceux  qui  sont  relatifs  a  l'etat  des  personnes  et 
au  droit  de  propriete  des  Francais  a  l'etranger,  ne  sont  definitifs 
qu'apres  avoir  ete  votes  par  les  deux  Chambres.  Nulle  cession, 
nul  echange,  nulle  adjonction  de  territoire,  ne  peut  avoir  lieu  qu'en 
vertu  d'une  loi. 

Art.  9.  Le  President  de  la  Republique  ne  peut  declarer  la  guerre 
sans  l'assentiment  prealable  des  deux  Chambres. 

Art.  10.  Chacune  des  Chambres  est  juge  de  l'eligibilite  de  ses 
membres  et  de  la  regularite  de  leur  election ;  elle  peut  seule  rece- 
voir  leur  demission. 

Art.  11.  Le  bureau  de  chacune  des  deux  Chambres  est  elu  chaque 
annee  pour  la  duree  de  la  session  et  pour  toute  session  extraordinaire 
qui  aurait  lieu  avant  la  session  ordinaire  de  l'annee  suivante. 

Lorsque  les  deux  Chambres  se  reunissent  en  Assemblee  nationale, 
leur  bureau  se  compose  des  president,  vice-presidents  et  secretaires 
du  Senat. 

Art.  12.  Le  President  de  la  Republique  ne  peut  etre  mis  en  accusa- 
tion que  par  la  Chambre  des  deputes  et  ne  peut  etre  juge  que  par 
le  Senat. 

Les  ministres  peuvent  etre  mis  en  accusation  par  la  Chambre  des 
deputes  pour  crimes  commis  dans  l'exercice  de  leurs  fonctions.  En 
ce  cas,  il  sont  juges  par  le  Senat. 


Lois  Constitiitiounclles.  2>2>7 

Le  S6nat  peut  etre  constitue  en  cour  de  justice  par  un  decret  du 
President  de  la  Republique,  rendu  en  conseil  des  ministres,  pour 
juger  toute  personne  preVenue  d'attentat  commis  contre  la  surety 
de  l'Etat. 

Si  l'instruction  est  commenced  par  la  justice  ordinaire,  le  decret  de 
convocation  du  Senat  peut  etre  rendu  jusqu'a  l'arret  de  renvoi. 

Une  loi  d£terminera  le  mode  de  proc^der  pour  l'accusation,  l'in- 
struction et  le  jugement. 

Art.  13.  Aucun  membre  de  l'une  ou  de  l'autre  Chambre  ne  peut 
etre  poursuivi  ou  recherche"  a  l'occasion  des  opinions  ou  votes  £mis 
par  lui  dans  Pexercice  de  ses  fonctions. 

Art.  14.  Aucun  membre  de  l'une  ou  de  l'autre  Chambre  ne  peut, 
pendant  la  dur£e  de  la  session,  etre  poursuivi  ou  arrets  en  matiere 
criminelle  ou  correctionnelle  qu'avec  l'autorisation  de  la  Chambre 
dont  il  fait  partie,  sauf  le  cas  de  flagrant  dedit. 

I  .a  detention  ou  la  poursuite  d'un  membre  de  l'une  ou  de  l'autre 
Chambre  est  suspendue  pendant  la  session,  et  pour  toute  sa  durea 
si  la  Chambre  le  requiert. 


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